1.1 Unless otherwise contractually agreed in individual cases, these General Terms and Conditions shall apply exclusively to the relationship with business owners, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). 1 BGB.
1.2 Our General Terms and Conditions of Business shall apply exclusively; we do not recognise any terms and conditions that conflict with or deviate from our Terms and Conditions of Business, in particular the customer’s terms and conditions of purchase, unless we have expressly agreed to their validity in writing. Our terms and conditions of business shall also apply if we carry out delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our terms and conditions of business.
1.3 Within the framework of an ongoing business relationship, our General Terms and Conditions of Business shall also apply to all future business with the customer, even if they are not expressly agreed again.
2.1 Our offers are non-binding and subject to change. We reserve the right to make technical changes within the scope of what is reasonable.
2.2 By ordering a delivery or service, the customer makes a binding declaration that we are to provide the delivery or service ordered.
2.3 We are entitled to accept the contractual offer contained in the order within 2 weeks of our receiving it.
2.4 Our declarations of acceptance as well as our orders must be in writing to be legally effective. The same applies to supplements, amendments or ancillary agreements.
2.5 Drawings, illustrations, performance descriptions, dimensions, weights and other performance data are only binding if this has been expressly agreed in writing; nevertheless, this does not constitute a guarantee or assurance of certain properties as long as this has not been expressly agreed in writing or declared or confirmed by us in writing.
2.6 If, after we have submitted our offer or after the signing of the contract, changes in contractual obligations become mandatory due to new or amended legal provisions or new requirements of authorities and inspection bodies, the contract shall be adapted, taking into account the interests of both parties.
3. Prices, price changes
3.1 All prices stated and agreed are net prices plus the value added tax applicable at the time of delivery/service.
3.2 In the absence of a special agreement, they apply “ex works”. The prices do not include packaging, freight, insurance or other ancillary costs (storage costs, third-party inspection, etc.); in particular, the costs of installation or assembly are also not included in our prices.
3.3 In the case of deliveries abroad, the customer shall also bear all taxes, customs duties and other levies payable abroad or reimburse us for such costs where applicable.
3.4 The prices agreed are only binding if we are able to provide our deliveries and services within 4 months, calculated from the signing of the contract. Otherwise, we reserve the right to change the prices proportionately in accordance with changes in the costs associated with the execution of the order (in particular in the case of wage and material price increases).
4. Terms of payment
4.1 Unless otherwise agreed, our invoices are due within 14 days from the respective invoice date.
4.2 New customers are required to pay for deliveries in advance or at the time of delivery.
4.3 In the event of non-compliance with the payment terms specified by us, we reserve the right to require advance payment or cash on delivery.
4.4 A payment shall only be deemed to have been made when we can dispose of the amount. This applies in particular to any cheque payments agreed to.
4.5 Bills of exchange shall only be accepted upon special written agreement and on account of payment. Discount and expenses shall be borne by the customer, who shall pay them immediately. We shall only be liable for timely presentation, protest, notification and return of the bill of exchange in the case of dishonour if we or our vicarious agents are guilty of intent or gross negligence.
4.6 If we become aware of circumstances which call into question the creditworthiness of the customer, in particular if a bill of exchange or cheque issued by the customer is not honoured or redebited or if the payment deadlines are not met, we are entitled to demand immediate payment of our entire remaining debt. In this case, we shall also be entitled to demand advance payments or the provision of security and to retain any goods that have not yet been delivered or services that have not yet been rendered, as well as to postpone further work on orders that are still in progress, until such payments have been made or security provided.
4.7 Offsetting with counterclaims is not an option unless these counterclaims are recognised by us or have been legally established. The customer may only exercise a right of retention if their counterclaim is based on the same contractual relationship and the claim on which the right is based has been legally established or is undisputed.
4.8 Our commercial agents and sales representatives are not authorised to accept payments on our behalf without a special written power of attorney.
5. Delivery times, damage caused by delay
5.1 The delivery dates stated or agreed by us are as a general rule only approximate and non-binding. Agreements deviating from this regarding a binding delivery date must be made expressly and in writing.
5.2 Even non-binding delivery dates are always subject to the timely clarification of all details of the order and the preliminary work to be performed by the customer, in particular the provision of all materials, preliminary products, documents and approvals to be supplied by the customer, the communication of the necessary technical information, the possible release of drawings and the punctual receipt of any agreed advance payment as well as the punctual provision of any agreed security for payment.
5.3 The dates agreed for a delivery shall be deemed to have been complied with as soon as notification of readiness for dispatch is given, if the delivery items cannot be dispatched on time through no fault of our own.
5.4 We are entitled to make deliveries before the expiry of the agreed delivery period or before an agreed delivery date.
5.5 If we are in default with our deliveries/services, we must first be granted a reasonable grace period.
5.6 We are not responsible for delays in delivery and performance due to force majeure and due to events which make delivery/service substantially more difficult or impossible for us – including in particular strikes, lockouts, export and import bans and other official orders, disruptions in the supply of raw materials, materials and energy for which we are not responsible, fire, operational, production and traffic disruptions, unforeseeable transport problems, machine defects, accidents and the like, or if they occur for our suppliers, their sub-suppliers or our subcontractors – even if binding deadlines and dates have been agreed. We are entitled to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up period or to withdraw from the contract in whole or in part with regard to the part not yet fulfilled.
5.7 If the hindrance lasts longer than 3 months, the customer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery/performance time is extended as a result of the aforementioned events or if we are therefore released from our delivery/performance obligations or withdraw from the contract as a result, the customer cannot derive any claims for damages from this. However, we may only invoke the aforementioned circumstances if we have notified the customer without delay.
5.8 We shall be liable for damages caused by default on the part of the customer as follows:
5.8.1 We shall be liable without limitation in the event of death or physical injury or damage to health attributable to us.
5.8.2 This shall also apply if we or our vicarious agents are guilty of intent or gross negligence with regard to the default.
5.8.3 In the event of slight negligence, liability is excluded if the default relates to immaterial contractual obligations.
5.8.4 If our default relates to essential contractual obligations, but we or our vicarious agents are not guilty of intent or gross negligence and there is no physical injury or damage to health or death, the customer’s claim to compensation for default shall be limited to 0.5% for each full week of default, up to a maximum of 5% of the invoice value of the deliveries and services affected by the default.
5.8.5 In addition, the explanations of the limitation of liability pursuant to clause 9 of these Terms and Conditions shall apply.
5.9 If the customer is in default of acceptance, we are entitled to store the goods in a third-party warehouse or on our premises and to charge the customer for the storage costs. If we store the goods on our premises, the storage costs shall be agreed to be 0.5% of the invoice value for each month or part thereof in relation to the goods affected by the default in acceptance, up to a maximum of 5%. The customer shall be entitled to prove, if necessary, that we have incurred no costs or lower costs than the aforementioned flat rate. Conversely, we may, if necessary, assert further costs and claims for damages against the customer if we have adequate proof of such.
5.10 We are entitled to make partial deliveries/perform partial services at any time. The customer may not derive any rights from the delay of partial deliveries/performances with regard to the timely partial deliveries/performances.
6.1 Unless otherwise agreed in writing in individual cases, we are only liable for our deliveries “ex works”.
6.2 The risk shall transfer to the customer as soon as the goods leave our delivery plant or warehouse or are placed at the disposal of the customer or a person appointed by them (including an appointed carrier) in the delivery plant or warehouse; this shall also apply if we bear the freight costs in an individual case.
6.3 If dispatch or collection of the goods is delayed or made impossible as a result of conduct attributable to the customer, the risk shall transfer to the customer at the time at which the goods should have been dispatched or collected in accordance with the contract.
6.4 Goods reported by us as ready for dispatch under the contract must be called off immediately, otherwise we shall be entitled to dispatch them at our discretion at the expense and risk of the customer or to store them at our discretion and to invoice them immediately. In each case, the customer must set a new collection date with us without delay.
6.5 We shall only provide special packaging protection, transport and transport aids as well as transport insurance at the express written request of the customer; the costs incurred shall be borne by the customer.
6.6 We do not assume any guarantee with regard to the duration of transport; in particular, the information we provide is without exception to the best of our knowledge, but is non-binding.
6.7 In the absence of specific instructions, we shall dispatch the goods by suitable means of transport at our own discretion, without assuming any obligation to choose the cheapest method of dispatch. We shall not be liable to pay compensation for damage in transit unless we or our vicarious agents are guilty of intent or gross negligence.
In the event of damage sustained during transport, the customer shall have the damage ascertained upon unloading or receiving of the goods in such a way that they can assert claims for damages against the transporter on the basis of this ascertainment.
6.8 In addition, the General German Freight Forwarders’ Terms and Conditions in the version valid at the time of conclusion of the contract shall also apply in the relationship between us and the customer.
7.1 The object of delivery remains our property (goods subject to the retention of title) until all claims, in particular also the respective balance claims, to which we are entitled against the customer within the scope of business relations have been fulfilled.
7.2 If goods subject to retention of title are processed by the customer to create a new movable object, the processing shall be carried out for us without us being obliged as a result; the new object shall become our property. In the event of processing, mixing or blending with goods not belonging to us, we shall acquire co-ownership of the new item in proportion to the invoice values of our goods subject to retention relative to the total value. The customer shall store our property/co-property for us free of charge.
7.3 The customer may only sell the goods subject to retention of title in the ordinary course of business under their normal terms and conditions of business and as long as they are not in default, provided that they have agreed to a retention of title with their customer and that the claims from the resale are actually transferred to us in accordance with clause 10.4.
7.4.1 The customer hereby assigns to us by way of security their claims with all ancillary rights – including any balance claims – in the amount of the final invoice amount (including VAT) of our claim, which accrue to them from resale or for any other legal reason against its customers or third parties. We accept this assignment.
7.4.2 If the goods subject to retention of title have been processed, mixed or blended and we have acquired co-ownership in the amount of our invoice value, we shall be entitled to the customer’s claim against their customer in proportion to the value of our rights to the goods.
7.4.3 If goods subject to retention of title are installed by the customer in a property/building, the customer hereby assigns the resulting claim for remuneration or from the resale of the property/building in the amount of the invoice values of the goods subject to retention of title with all ancillary rights, including a claim for granting a security mortgage with priority over the rest. We accept the assignment.
7.4.4 If the customer has sold the claim within the scope of genuine factoring, our claim shall become due immediately and the customer shall assign to us the claim against the factor taking its place and shall immediately forward its proceeds to us. We accept this assignment.
7.5 The customer’s authority to sell or process goods subject to retention of title in the ordinary course of business shall end in the event of their default in payment or our revocation as a result of a sustained deterioration in the customer’s financial position, but no later than the customer’s suspension of payments or the filing of an application for insolvency proceedings against their assets.
The customer is then obliged to hand over to us at our request a precise list of the claims to which they are entitled with the names and addresses of the buyers, the amount of the individual claims, the invoice date, etc. and to provide us with all information necessary to assert the assigned claims and to allow us to check these claims.
7.6 Pledging or transfer by way of security of the goods subject to retention of title or the assigned claims is not permitted.
7.7 The customer is obliged to keep the goods subject to retention of title in perfect condition. They shall provide us with information about the goods subject to retention of title at any time, in particular with regard to their respective location. In the event of the assertion of legitimate interests, we shall be authorised to inspect the goods subject to retention of title.
7.8 In the event of access by third parties to the goods subject to retention of title, in particular in the event of seizure, as well as in the event of any other – possibly only imminent, but expected – impairment of our rights, the customer is obliged to point out our ownership/co-ownership and to notify us immediately.
7.9 The customer is obliged to sufficiently insure the goods subject to retention of title against any damage to the usual extent at their own expense and to provide us with evidence of this upon request. They hereby assign to us their claims for compensation to which they are entitled from damages of the aforementioned kind against insurance companies or other parties liable to pay compensation, in the amount of the invoice value of our goods. We accept this assignment.
If the customer does not fulfil their obligations in accordance with the above paragraph, we shall be entitled to take out the aforementioned insurances to the extent deemed necessary by us at the customer’s expense within the scope of what is customary, with the proviso that we shall be directly entitled to the rights arising from the insurance contracts.
7.10 In the event of a breach by the customer of the obligations under this clause 10, we shall be entitled, after having granted an appropriate grace period, to demand immediate payment of the entire remaining debt for the goods subject to retention of title or to demand security; no grace period shall be required if there is a serious breach by the customer of the provisions in this clause 10 or if granting a grace period would jeopardise our rights or economic interests.
If the customer does not pay the entire remaining debt within 7 days after a corresponding request by us or if they do not provide the requested securities within this period, their right to use the reserved goods shall lapse. We shall then be entitled to demand immediate surrender at the expense of the customer, to the exclusion of any rights of retention.
7.11 Notwithstanding the payment obligations of the customer, we shall be entitled to utilise the goods subject to retention of title repossessed by us in the best possible way by private sale or to take them over at the respective market price. In the absence of any other express agreement with the customer, the market price for the goods subject to retention of title shall, in the absence of any other express agreement with the Purchaser, be estimated by a sworn expert appointed by the Chamber of Industry and Commerce (or comparable institution, especially abroad) responsible for the respective delivery plant/warehouse in which the goods subject to retention of title are located; this estimate shall be binding for the customer and us. The proceeds from utilisation or the market price shall be set off against the payment obligation of the customer after deduction of the costs incurred by us, including those of the aforementioned expert.
7.12 If the value of the existing securities exceeds the secured claims by more than 20% in total, we are obliged to release securities of in the manner of our choice at the request of the customer.
8.1 The customer shall inspect the delivery immediately upon receiving it to ensure it is complete and free of defects. Obvious defects which are recognisable upon proper inspection – insofar as such inspection is feasible in the ordinary course of business – must be reported in writing within 10 days of receiving the goods; otherwise the assertion of the warranty claim for the defects concerned is excluded. Timely dispatch of such a report shall be sufficient to meet the deadline.
The customer shall bear the full burden of proof for all eligibility criteria for a claim, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect.
8.2 For mutual commercial transactions between merchants, § 377 of the German Commercial Code (HGB) shall apply in addition.
8.3 We must be given the opportunity to establish the defect reported to us. At our request, the customer is obliged – insofar as this is technically possible and reasonable – to send the rejected goods to us at our expense. In the event of an unjustified notice of defect, these costs shall be reimbursed to us.
8.4 In the event of justified notices of defect, we shall initially be entitled, at our discretion, to rectify the defect or to make a replacement delivery. If the defect is not remedied as a result, we shall be entitled to these rights a second time.
The expenses necessary for the purpose of subsequent performance (repair or replacement delivery), in particular transport, travel, labour and material costs, shall be borne by us; however, this shall not apply to such additional costs that arise due to the fact that the delivery or service is no longer located at the agreed place of delivery or assembly.
8.5 If the subsequent performance (repair or replacement delivery) fails, the customer may in principle demand a reduction in the remuneration (abatement) or rescission of the contract (withdrawal) at their discretion. However, if there is only a minor breach of contract, in particular in the case of minor defects, the customer shall not be entitled to withdraw from the contract.
8.6 If the goods delivered by us are only partially defective, the customer may only withdraw from the contract in full if a defect-free partial delivery is of no interest to them; otherwise they remain obliged to accept the defect-free part of the goods.
8.7 The warranty period for our deliveries and services is 1 year, calculated from the transfer of goods or the time of the transfer of risk.
8.8 The customer does not receive any guarantees from us in the legal sense. This does not affect express manufacturer’s warranties from us or third parties. In all other respects, reference is again made to the regulations in section 2.5.
8.9 We do not assume any liability for information or advice provided by our employees or sales representatives that go beyond the respective product description or the contents of the written contract.
9.1 Claims for damages and reimbursement of expenses of the customer (hereinafter: claims for damages), irrespective of the legal grounds, in particular due to the breach of duties arising from a contractual obligation and from tort, are excluded.
9.2 This does not apply in cases of the assumption of a guarantee or a procurement risk.
9.3 Furthermore, this shall not apply if claims are asserted under the Product Liability Act, in cases of intentional or grossly negligent conduct on our part or on the part of our vicarious agents, in the event of injury to life, limb or health or in the event of a breach of material contractual obligations.
9.4 The claim for damages for the breach of essential contractual obligations is, however, limited to the foreseeable, contract-typical, direct average damage according to the type of delivery or service, insofar as there is no intent or gross negligence or liability due to injury to life, body or health.
9.5 Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our managing directors, employees, commercial agents and vicarious agents.
10.1 Our deliveries and services do not include the transfer of copyrights.
10.2 We also reserve all property rights and copyrights to our drawings, drafts, cost estimates, cost quotations and other documents. These documents may only be reproduced or made accessible to third parties with our express written consent.
11.1 These Terms and Conditions and the entire legal relationship between us and the customer shall be governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (the UN Sales Convention).
11.2 If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of performance shall be 89429 Bachhagel and the place of jurisdiction shall be Dillingen/Donau. However, we are also entitled to sue the customer at the court responsible for their place of residence or registered office.
11.3 If a provision in these terms and conditions or a provision within the scope of other agreements between the customer and us is or becomes invalid, this shall not affect the validity of all other provisions and agreements. In such a case, the contracting parties undertake to replace the wholly or partially invalid provision with a provision which comes as close as possible to the invalid provision from an economic standpoint.
11.4 Exclusively for our internal purposes, we are entitled to store and process data relating to the goods, services and payment transactions with the customer.