1 – General information
(a) The following terms and conditions of business apply to all contracts that we (hereinafter referred to as „Contractor“) conclude with you (hereinafter referred to as „Customer“). Unless otherwise agreed, any general terms and conditions of business used by the Client shall not apply, either if not expressly contradicted by the Contractor or if the order is accepted. The contractor’s general terms and conditions of business shall also apply to future business relations without the contractor having to refer to them again.
(b) As a company, the contractor has an interest in concluding contracts for its products only with other companies. By using the price inquiry form, the customer assures that he is a company. Should the client provide incorrect information in this respect, he agrees to be legally treated as an entrepreneur (consumer rights do not apply). In addition, the contractor is also entitled to a right of rescission and the assertion of a lump-sum compensation for damages in accordance with §3 paragraph 5.
An entrepreneur is any natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his independent, professional or commercial activity. In contrast, a consumer within the meaning of the above provision is any natural person who concludes a legal transaction for purposes that can predominantly be attributed neither to his commercial nor his independent professional activity.
2 – Offer, acceptance, conclusion of contract, price
(a) The Client shall provide the Contractor with all information, texts or files required for the submission of an offer via the Contractor’s contact form or by e-mail. Any specifications of the Contractor regarding file formats must be observed. The Customer undertakes not to transmit any data whose content infringes the rights of third parties (in particular copyrights, rights to a name, trademark rights, data protection rights, in particular in accordance with the DSGV-O) or violates existing laws. The Customer expressly indemnifies the Contractor from all claims of third parties asserted in this connection. This also applies to the costs of legal representation required in this connection. The contractor does not check the transmitted data for correctness of content and therefore does not assume liability for errors.
(b) On the basis of the inquiry and information provided by the Customer, the Contractor shall submit an offer to the Customer, to which the Contractor shall be bound for 30 calendar days, after which an offer shall only remain valid if the Contractor extends the deadline by a letter in text form. All offers of the Contractor are net plus the respective applicable statutory value added tax and ex works (INCOTERMS / transfer of risk EXW) or the shipping point specified by the Contractor (excluding packaging and shipping costs). If the client requests delivery of the goods, this shall be at the client’s expense and risk. Payments are to be made net after receipt of the invoice, unless otherwise agreed in writing. A deduction of a discount is not permitted. Initial orders for new clients are generally carried out as prepayment transactions; future orders can be carried out against invoice at the contractor’s discretion, depending on the client’s credit rating.
(c) Under the same condition, services and deliveries of a special kind, such as travel and assembly work, made for the purpose of submitting a cost estimate shall be charged to the Customer, even if the service is not performed or is performed only in a modified form.
(d) If the delivery is made to countries outside the European Union, further costs may be incurred for which the contractor is not responsible, such as customs duties, taxes or money transfer fees (transfer or exchange rate fees of credit institutions), which are to be borne by the customer. Any costs incurred in the transfer of money shall also be borne by the Customer in cases where the delivery is made to an EU member state but the payment was arranged outside the European Union. If price increases occur during the period between the submission of the offer and the acceptance by the client, the contractor is entitled to charge these to the client. The Contractor shall inform the Customer of such price increases. In the event of an increase in the original offer price of more than 5%, the Customer shall have the right of revocation, which must be received by the Contractor within 5 calendar days, calculated from the date of receipt of the notification by the Contractor by letter in text form, fax or e-mail.
(e) If a delivery is exempt from turnover tax pursuant to §§ 4 No. 1 lit. b) in conjunction with § 6 a UStG, the Customer is obliged to sign a confirmation of receipt and return it to the Contractor within 30 calendar days of the handover of the goods by the Contractor or a third party commissioned by him. If the customer does not fulfil his obligation, the value added tax will be charged subsequently. Ownership of the goods subject to retention of title shall remain reserved until receipt of the confirmation of receipt or until payment of the subsequently invoiced VAT.
(f) After acceptance of the offer by the Customer, the Contractor shall send the Customer an order confirmation in text form. Only the order confirmation provided by the contractor leads to the conclusion of the contract and only the parameters contained therein, such as prices, place of delivery, delivery times, etc. are the basis of the contract in addition to these GTC. Previous information is not binding. The contractor is not liable for errors resulting from documents, drawings, samples, etc. as well as from information provided by the client, unless these are obvious.
(g) We reserve the right to make changes in construction or form, deviations in colour shade, provided that the goods resulting from the order confirmation are not significantly changed by this and this is reasonable in individual cases. Partial deliveries are permissible, as far as reasonable for the customer. Conclusion of the contract is subject to the condition precedent that there are no obstacles due to national or international regulations, in particular export control regulations as well as embargos or other sanctions.
(h) The processing of the order and the transmission of all information required in connection with the conclusion of the contract shall be carried out partially automatically by e-mail, if necessary. The Customer must therefore ensure that the e-mail address he has deposited with the Contractor is correct, that the receipt of e-mails is technically ensured and, in particular, is not prevented by SPAM filters, that the Customer receives the order confirmation in text form.
(i) The contractor shall carry out repairs and maintenance as well as services in accordance with the recognized rules of technology. He is entitled to deviate from or not to apply any repair and maintenance instructions of the manufacturer(s) that go beyond this. If necessary, the Customer shall bear the burden of proof that the failure to apply or the changed application of the manufacturer’s repair and maintenance instructions is the cause of the damage.
3 – Delivery
A specific delivery time is generally not guaranteed by the contractor, unless otherwise stated in the order confirmation. In this exceptional case the following applies:
(a) The delivery period shall generally begin on the date of the order confirmation, unless the order confirmation states otherwise, e.g. the need for a down payment. Compliance with the delivery period presupposes the fulfilment of the contractual obligations of the customer.
(b) The delivery period shall be deemed to have been observed if the goods resulting from the order confirmation have left the supplying plant or the storage location by the end of the delivery period, or the Customer has been notified that the goods are ready for dispatch, unless otherwise stated in the order confirmation. Unloading of the goods is the responsibility of the customer and is at his risk. No liability is assumed for certain temperatures of the goods.
(c) In the event of measures within the framework of industrial disputes as well as in the event of unforeseen obstacles which are beyond the control of the contractor or the forwarder or obstacles for which any of the contractor’s suppliers are responsible, the delivery period shall be extended accordingly.
(d) If dispatch is delayed by more than 14 days as a result of circumstances for which the Customer is responsible, the Contractor shall be entitled to charge either the storage costs charged by a third party or, in the case of the Contractor’s own storage, 1% of the net invoice amount for each month of delay in delivery or part thereof. In addition, after a reasonable grace period of at least 10 calendar days, which has been previously set and has elapsed without result, the Contractor shall be entitled to dispose of the delivery item otherwise.
(e) Should the Customer be more than three weeks in arrears with the acceptance of the goods resulting from the order confirmation or with the fulfilment of his payment obligation after notification of the provision, the Contractor shall also be entitled to withdraw from the contract or to demand damages for non-performance after the fruitless expiry of a set grace period of 14 calendar days. In the case of damages for non-performance, the contractor is entitled to demand 30% of the net sales price as lump-sum damages. In this case, the contractor reserves the right to prove higher damages, the client reserves the right to prove lower damages. If the Contractor does not exercise his right to liquidated damages, he shall – without prejudice to his other rights – also have the right to dispose freely of the goods resulting from the order confirmation and to deliver to the Customer in its place within a reasonable period of time a similar object under comparable contractual conditions, without prejudice to the Contractor’s right to take account of any price increases. Should the price increases amount to more than 5% of the previous offer sum, the Customer shall have the right of revocation, which must be received by the Contractor in writing by letter, fax or e-mail within 5 calendar days, calculated from the receipt of the notification by the Contractor.
(f) The Contractor reserves the right to exceptionally allow the Client to cancel the contract, whereby cancellation costs will be charged according to the following scale. In this case, however, a cancellation will only occur once the complete cancellation costs have been received in the Contractor’s account.
The cancellation costs are in %:
31 days from order confirmation 10%
31-60 days from order confirmation 30%
61-90 days from confirmation of order 50%
91 days from order confirmation 70%
4 – Default of payment
In the event of default of payment, the contractor is entitled to charge interest at a rate of 9 percentage points above the base rate plus a 25EUR handling fee per overdue invoice, as well as all lawyers‘ and collection fees incurred. The client is in default if he either makes no or incomplete payment from the due date of the invoice, provided that this is at least 7 days after receipt of the invoice, or after receipt of a corresponding reminder, allows the deadline for payment set therein to expire in whole or in part. In the event of non-compliance with the terms of payment or in the event of circumstances which become known to the contractor after conclusion of the contract and which call the creditworthiness of the customer into question, such as an application for the opening of insolvency proceedings or negative information from Schufa-, Creditreform, etc. or other circumstances which substantially reduce the creditworthiness of the customer and through which the contractor’s claim is or could be endangered in whole or in part, all claims shall become due immediately after a prior reminder and a period of at least 3 days – without regard to the term of any bills of exchange accepted. In this case, the contractor is also entitled to carry out outstanding deliveries and services only against advance payment or provision of security and to withdraw from the contract after expiry of a reasonable period of grace and/or to claim damages.
5 – Assignment of claims
The contractor is entitled at any time to assign the receivables/claims arising from the current and future business relations, in particular trade receivables, to third parties, including credit institutions.
6 – Transfer of risk, acceptance
(a) Shipment shall be at the expense and risk of the customer, unless otherwise stated in the order confirmation. The risk of accidental loss or accidental deterioration shall pass to the Customer upon delivery of the object of purchase to the forwarding agent, carrier or other person designated to carry out the shipment, unless otherwise stated in the order confirmation. The handing over shall be deemed to be the same if the customer is in default of acceptance. The upper limit of liability for claims for damages shall be 10% of the order amount, provided that amounts not exceeding this limit are covered by the contractor’s liability insurance.
(b) It is the responsibility of the Customer to protect the delivered goods against theft, vandalism and damage caused by external influences (e.g. weather) or, if necessary, to insure them, provided that no insurance cover exists yet. The client is liable for any damage in this regard.
(c) For deliveries including installation, the risk shall pass to the customer upon completion of the installation. If, after dispatch ex works, but before the transfer of risk, the performance of the contractor is damaged or destroyed by force majeure, war, sabotage or other unavoidable circumstances for which the contractor is not responsible, the contractor shall also be entitled to that part of the remuneration which corresponds to the damaged or destroyed performance.
(d) If acceptance has been agreed, this must be carried out immediately on the agreed date, alternatively immediately after the notification of completion by the contractor. The Customer may not refuse acceptance in the event of an insignificant defect, provided that the Contractor expressly acknowledges his obligation to remedy the defect.
(e) The Customer shall ensure that the Contractor’s employees have free access to the place of performance at the agreed performance times. If clearing work is required by the contractor in preparation for the performance of work, this will be invoiced separately. The Customer shall ensure that the place of performance is adequately equipped free of charge with compressed air, ventilation, electricity, sockets, heating and a locked storage area for work materials and spare parts.
7 – Right of retention, offsetting
(a) The customer may only exercise a right of retention if it concerns claims from the same contractual relationship.
(b) The client may only offset counterclaims if these counterclaims are undisputed or have been legally established.
8 – Retention of title
(a) The goods shall remain the property of the contractor until settlement of the claims to which the contractor is entitled under the contract. The retention of title shall also remain in force for all claims which the contractor subsequently acquires against the customer in connection with the object of purchase, e.g. due to repairs or spare parts deliveries as well as other services.
(b) Before transfer of ownership of the reserved goods, pledging or transfer of ownership by way of security is not permitted. In the event of access by third parties, in particular in the event of seizure of the object of purchase, the Customer shall notify the Contractor immediately in writing in text form and shall immediately inform the third party of the Contractor’s reservation of title. The Customer shall bear all costs that must be incurred to revoke the seizure and to recover the object of purchase, insofar as they cannot be collected from third parties.
(c) The Customer may resell the goods in the ordinary course of business. In this case, he hereby assigns to the contractor all claims in the amount of the invoice amount which accrue to him from the resale; the contractor accepts the assignment. The client is further authorised to collect the claim. If he does not properly fulfil his payment obligations, the contractor is entitled to collect the claim himself. The contractor undertakes to release the securities to which he is entitled insofar as the invoice amount of the goods subject to retention of title exceeds the claims to be secured, insofar as these have not yet been settled, by more than 20%. The choice of the securities to be released is incumbent on the contractor. In the event of significant breach of contract by the Customer, the Contractor shall be entitled to withdraw from the contract and demand the return of the object of purchase despite prior warning, in particular in the event of default of payment. In this case, the Contractor shall be entitled, after written notice and with a reasonable period of notice, to sell the object of purchase by private sale in the best possible way, offsetting the proceeds of sale against the purchase price.
(d) Any processing and treatment of the reserved goods subject to retention of title as well as any combination with third-party goods by the Customer or third parties shall be carried out for the Contractor. The Customer shall acquire co-ownership of newly created items in the ratio of the invoice value of the reserved goods to the other processed items at the time of processing.
(e) If the law of a country does not permit the retention of title, but permits the reservation of comparable rights, the contractor may exercise all rights of this kind. The Customer is obliged to take measures at his own expense which are necessary to make these rights to the object of purchase effective and to maintain them.
(f) The Contractor is entitled to withdraw from the contract if the Customer or a third party files for insolvency proceedings.
9 – Warranty
(a) The Customer shall immediately inspect the delivered goods for completeness, obvious defects and transport damage and shall immediately notify the Contractor of any complaints by fax or e-mail and give notice of any defects. In this respect, §377 HGB (German Commercial Code) shall apply analogously, if applicable. Replaced parts become the property of the contractor.
(b) Only the Contractor’s own specifications and the manufacturer’s product description shall be deemed agreed as the quality of the item, but not any other advertising, public promotions or statements by the manufacturer.
(c) In the event of defects, the Contractor shall have the choice between rectification of defects or subsequent delivery. If the rectification of defects fails, the Customer may, at his discretion, demand a reduction in price or withdraw from the contract. After a third unsuccessful attempt, the rectification of defects shall be deemed to have failed, unless something else results from the nature of the item or the defect or other circumstances in particular. In the event of rectification of defects, the contractor shall not be obliged to bear the increased costs arising from the transfer of the goods to a place other than the place of performance, unless the transfer is in accordance with the intended use of the goods. The removed/replaced parts become the property of the contractor.
(d) For essential third-party products, the contractor’s liability for material defects is limited to the assignment of the contractor’s claims for material defects against his supplier. If the fulfilment of the assigned claims for material defects fails, the claims of the Customer against the Contractor arising from material defects shall be revived.
(e) For the purpose of carrying out necessary rectification work, the customer shall
(1) grant the necessary time and opportunity, otherwise the contractor is released from the obligation to rectify the defects.
(2) to provide auxiliary staff, equipment and operating facilities at his own expense and to perform ancillary work.
3) to carry out at his own expense any work exceeding the original scope of the contract.
(f) The obligation to remedy material defects does not apply to natural wear and tear and parts which are subject to premature consumption due to their material composition or the nature of their use. Furthermore, the Contractor shall not be liable for damage resulting from the fact that the Client has stored, handled or used the contractual objects improperly or negligently, has itself carried out faulty assembly or commissioning, has used unsuitable operating materials, faulty assembly or commissioning was carried out by the Client or third parties, no original parts and materials were used, no proper maintenance was carried out, products were subjected to excessive stress, etc. Nor shall there be any liability for any other circumstances which have arisen through no fault of the Contractor (e.g. defective foundations, unsuitable building ground, omitted or inadequate securing of data stocks by the Client, inadequate checking of programs and data for computer viruses, unusual effects of any kind, e.g., damage to the equipment, loss of data, etc.). e.g. vibrations of foreign aggregates, penetration of foreign bodies, chemical, electro-chemical or electrical influences – insofar as they are not the fault of the contractor -, force majeure, such as lightning, etc.). The Contractor shall not be liable for defects resulting from measures or constructions which the Customer has expressly requested or which occur in materials or products which the Customer has provided or the use of which the Customer has expressly requested contrary to a notice of the Contractor.
(g) The obligation to remedy a material defect is further excluded:
1) by any modifications or repair work carried out improperly by the Customer or third parties without the prior approval of the Contractor and/or
2) parts have been incorporated into the delivered item or item to be serviced which the contractor has not approved for use, and/or
3) the object delivered or to be serviced has been modified in a manner not previously approved in writing by the Contractor, and/or
4) parts have been installed by third parties which have an influence on the operation of the unit and/or
5) the customer has not complied with the regulations concerning the treatment, maintenance and care of the delivered item or item to be maintained (e.g. operating instructions)
(g) If the Customer or a third party carries out improper repairs, the Contractor shall not be liable for the consequences arising therefrom. The same applies to changes to the delivery or service made without the prior consent of the contractor. Only in urgent cases of danger to operational safety or to prevent disproportionately large damage, in which case the Contractor must be notified immediately, shall the Customer have the right to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary expenses from the Contractor.
(h) In the case of justified rectification of defects, the Contractor shall bear the direct costs incurred by the rectification or replacement delivery, including the costs of the replacement part and its shipment to the place of performance. He shall also bear the reasonable costs of dismantling the defective delivery part and the costs of installing the replacement part. If this can be reasonably demanded according to the situation of the individual case, the contractor shall also bear the costs of any necessary provision of his fitters and assistants, insofar as these are not increased by the fact that the delivery item was taken to a place other than the place of performance.
(i) The warranty period is one year from delivery of the goods. The shortening of the period shall not apply in the case of culpably caused damage attributable to the Contractor resulting from injury to life, body or health and in the case of other damage caused intentionally or by gross negligence or in so far as the Contractor has fraudulently concealed the defect or has assumed a guarantee for the quality of the item or in the case of items which have been used in accordance with their normal use for a building and have caused its defectiveness or in the case of statutory rights of recourse which the Customer has against the Contractor in connection with rights in respect of defects.
(j) If it turns out that this is not a warranty case, the Customer shall bear the costs incurred by the Contractor to date.
10 – Liability
(a) In the event of a breach of obligations not directly related to essential contractual obligations, the contractor shall only be liable for himself and his vicarious agents in the event of intent and gross negligence. The Contractor shall be liable for damages resulting from injury to life, body or health and the Product Liability Act as well as from the violation of essential contractual obligations which he or his vicarious agents have caused by culpable breach of duty, to the extent permitted by law, limited to reasonably foreseeable damages typical for the contract. Further claims are excluded to the extent permitted by law.
(b) Liability for consequential damage caused by defects is excluded to the extent permitted by law; this does not apply in the case of intent on the part of the contractor or his vicarious agents or in the case of defects in the delivery item, to the extent that liability exists under the Product Liability Act for personal injury or property damage to privately used items.
11 – Choice of law, place of performance, place of jurisdiction
(a) All legal relations between the contractor and the customer shall be governed exclusively by the law of the Federal Republic of Germany applicable to the legal relations between domestic parties, excluding the UN Convention on Contracts for the International Sale of Goods. Furthermore, the contractor reserves the right to appeal to a court of arbitration in accordance with the ICC rules of conciliation and arbitration.
(b) The place of performance for all services arising from the business relations of the parties as well as the place of jurisdiction is the registered office of the contractor.