GENERAL TERMS AND CONDITIONS
General terms and conditions of sale, delivery and payment valid from 01.09.2012
§ 1 General
(1) We, hereinafter also referred to as "Seller", shall provide our deliveries and services exclusively on the basis of the following terms and conditions. We object to any deviating conditions of the Buyer. They shall only become part of the contract if and insofar as they are in accordance with the Seller's terms and conditions or if they have been accepted by the Seller in writing.
They shall not become the basis of the contract even if the seller does not expressly object to the deviating conditions. This also applies in the case of repeated sending. Acceptance of the deliveries and services shall be deemed as acceptance of the Seller's terms and conditions.
(2) All subsidiary agreements, amendments and supplements to contractual agreements require the written confirmation of the seller to be valid. The same shall also apply to any oral agreements or promises made by employees of the Seller, as well as the assurance of characteristics.
(3) According to § 14 of the German Civil Code (BGB), an "entrepreneur" is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity.
(4) According to § 13 BGB (German Civil Code), a "consumer" in the sense of the following provisions is any natural person who concludes a legal transaction for a purpose that cannot be attributed to his commercial or self-employed professional activity.
§ 2 Offer and contract documents
(1) The seller's offer is subject to change without notice, unless otherwise stated in the order confirmation. The dispatch of catalogues, price lists and brochures does not obligate the seller to deliver.
(2) The documents belonging to the offers or contractual agreements, such as illustrations, drawings, weight or dimensional information or other technical data, as well as DIN, VDE or other company or inter-company standards referred to, merely identify the subject matter of the contract and do not constitute a guarantee of characteristics.
(3) The Seller's written order confirmation is decisive for the content and scope of the contractual agreement. Collateral agreements, amendments, supplements, etc. require the written confirmation of the seller. An order is deemed to be accepted upon its execution. The invoice shall replace the order confirmation.
(4) The seller reserves the right of ownership and copyright to illustrations, drawings, calculations and other documents. This also applies to such written documents which are marked "confidential". Before passing them on to third parties, the ordering party or purchaser requires the express consent of the seller.
§ 3 Prices and terms of payment
(1) The prices are exclusive of transport packaging and insurance ex works, unless expressly agreed otherwise. For orders without price agreement, the Seller's list prices valid on the day of delivery shall apply. The prices are in EURO, if no other currency has been agreed in writing.
(2) Statutory value-added tax is not included in the prices; it is shown separately on the invoice at the statutory rate on the day of invoicing.
(3) Unless other agreements have been made in writing, the following terms of payment apply:
30 days after invoice date net
within 10 days after date of invoice with deduction of 2 % cash discount
(4) If the payment deadline is exceeded, as in the case of default in payment, the seller is entitled to charge the usual bank interest on loans. The Seller's claims shall become due immediately in total if the terms of payment are not met.
(5) The buyer can only offset counterclaims of the seller if the counterclaim of the buyer is undisputed or a legally binding title exists; the buyer can only assert a right of retention if it is based on claims from the purchase contract.
§ 4 Delivery
(1) Delivery dates and delivery periods, which can be agreed upon bindingly or non-bindingly, must be stated in writing. Delivery periods begin with the conclusion of the contract.
(2) If the Seller is prevented from delivering the object of sale on the agreed date or within the agreed period (delay in delivery) due to circumstances for which he or a vicarious agent is responsible, he shall be liable in accordance with the statutory provisions. If the delay in delivery is not attributable to the Seller or his vicarious agent, the Seller shall only be liable for the foreseeable, typically occurring damage. If the delay in delivery is based solely on a breach of a non-substantial contractual obligation, the buyer may claim a flat-rate default damage of a maximum of 15 % of the value of the delivery.
(3) Force majeure and events which temporarily prevent the Seller from delivering the object of sale on the agreed date or within the agreed period through no fault of his own shall entitle the Seller to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up period. If such disruptions lead to a delay in performance of more than four months, the buyer may withdraw from the contract. Other rights of withdrawal remain unaffected.
(4) The purchaser is obliged to accept the purchased item. If the buyer is in default of acceptance, the seller is entitled to demand compensation for the damage incurred by him as a result.
(5) During the delivery period, the manufacturer reserves the right to make changes in design or form, deviations in colour shade and changes to the scope of delivery, provided that the changes or deviations are reasonable for the buyer, taking into account the interests of the seller. If the seller or the manufacturer uses signs or numbers to designate the order or the ordered object of purchase, no rights can be derived from this alone with regard to the concretization of the object of purchase or the scope of delivery.
§ 5 Transfer of risk
(1) The risk of accidental loss and accidental deterioration of the item shall pass to the buyer upon delivery.
(2) In the event that the purchaser is not a consumer, the risk shall pass to the purchaser upon dispatch of the goods when the goods are handed over to the person or company carrying out the transport and when the goods have left the seller's warehouse for the purpose of dispatch.
§ 6 Warranty
(1) The warranty period for newly manufactured goods is 1 year if the purchaser is not a consumer. Otherwise the legal warranty period of 2 years applies. For used goods, the warranty period is 1 year if the buyer is a consumer. If the buyer is not a consumer, the sale of used goods is carried out under exclusion of any liability for material defects. It begins with the delivery of the goods.
(2) In the case of wearing parts (wearing parts are those products whose functionality is limited to a certain operating time for technical reasons, e.g. brake discs and pads, filters, etc.), warranty claims shall only exist in cases where a wearing part fails due to defects before the end of its normal operating or service life by way of exception. The end of the normal operating or service life for wearing parts does not constitute a defect in the sense of the warranty, even if this is reached before the end of the 12 or 24-month warranty period.
(3) The warranty claims of the buyer are primarily limited to a claim for subsequent performance, i.e. a claim for rectification of defects or replacement delivery. If the buyer is not a consumer, the seller has the right to choose between repair or replacement. If the repair or replacement fails, the buyer can demand a reduction in price or withdraw from the contract. The conditions for exercising the right of withdrawal are determined by § 323 BGB.
(4) The Seller shall be liable in accordance with the statutory provisions if the Buyer asserts claims for damages based on malice, intent or gross negligence, including malice, intent or gross negligence on the part of its representatives or vicarious agents. Insofar as the Seller is not accused of intentional breach of contract, liability is limited to foreseeable, typically occurring damages. If the claim for damages is based on a culpably omitted removal of defects, it is limited to the corresponding rates of the DAT/Schwacke list with regard to installation and removal costs. Otherwise, liability for damages is excluded; in this respect, the seller is not liable in particular for damages which have not occurred to the delivery item.
(5) In the case of rectification of defects, the seller shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labour and material costs. This applies to non-consumers only insofar as the costs are not increased by the fact that the purchased item was taken to a place other than the place of performance.
(6) The buyer must assert claims for the removal of defects with the seller.
(7) In the case of a defect caused by faulty assembly, the seller's obligation to provide warranty shall only apply if the assembly or installation of the sold item was carried out professionally. The buyer must demonstrate and prove that the installation was carried out professionally.
§ 7 Retention of title
(1) The object of sale shall remain the property of the seller until all claims to which the seller is entitled have been settled, even if the object of sale has been further processed by the buyer.
(2) The buyer is entitled to resell the delivery items in the ordinary course of business; however, he hereby assigns to the seller all claims in the amount of the final invoice amount of the purchase price claim owed by him (including value added tax), which accrue to him from the resale against his customers or third parties, irrespective of whether the delivery items have been resold without or after processing. The buyer remains authorized to collect these claims even after the assignment. The seller's authority to collect the claims himself remains unaffected by this. The seller undertakes not to collect the claims himself as long as the buyer fulfils his payment obligations in accordance with the contract and no application for the opening of insolvency proceedings has been filed. If one of the latter circumstances has occurred, the buyer shall, at the request of the seller, provide the seller with all information necessary for the collection of the assigned claim and hand over the relevant documents and inform the debtors concerned (third parties) of the assignment.
§ 8 Place of performance - Place of jurisdiction - Miscellaneous
(1) The place of performance is the location of the seller's place of business.
(2) If the buyer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the place of jurisdiction is the location of the seller's registered office. However, the Seller is also entitled to sue the Buyer at the place of his place of business or residence.
(3) In addition to the provisions of the General Terms and Conditions of Sale, Delivery and Payment, the law of the Federal Republic of Germany shall apply exclusively, excluding the UN Convention on Contracts for the International Sale of Goods.
(4) Should individual provisions of these terms and conditions be or become invalid, the validity of the remaining provisions and any agreements themselves shall not be affected. In this case, the parties to the contract shall replace the invalid provision by a valid provision that comes as close as possible to the economic success of the invalid provision, or achieve the economic success in another legally permissible manner.