General terms and conditions
§1 General information
1.1 The following conditions apply for all of our tenders, sales, deliveries and services and are a component of the contract. They do not apply if our contractual partner is a private individual and not acting professionally or commercially. They also apply for all future business relationships, even if they are not expressly agreed on again.
1.2 We herewith expressly object to any deviating or supplemental general terms and conditions of the purchaser. They do not apply even if the purchaser has based its order or other clarification on them.
§2 Tenders and orders
2.1 Our tenders are subject to confirmation if they are not designated as binding in writing. A contract does not take effect until we have confirmed the order or delivered the products.
2.2 Dimensional data, weights, illustrations, drawings and other documents included in our non-binding tenders remain in our ownership and serve only as rough approximations. They can only become binding contractual content if we expressly confirm them in writing.
§3 Doubtful solvency
3.1 If we should learn about circumstances following the conclusion of the contract which justify doubts about the solvency of the customer, we can make additional deliveries dependent on advance payment of the goods by the customer. We can set a reasonable deadline for the customer's advance payment and withdraw from the contract if the payment is not received on time; the purchaser may provide a bank guarantee as a security instead of the advance payment. If we have already delivered the goods, then the purchase price shall be due immediately without deduction regardless of the agreed payment deadlines.
3.2 Doubts about the solvency of the purchaser are then justified, for example, if a petition to start insolvency proceedings against his assets has been submitted or if payments have not been made to us or third parties by the deadlines.
4.1 Our prices are deemed "ex-works" if no deviating agreement has been made with the purchaser. The packaging costs are not included in the price.
4.2 The legal VAT is not included in our prices and will be separately indicated in the invoice at the legally valid amount on the day of invoicing.
4.3 If more than 4 months have lapsed since the day of the contract signing and the date of delivery which are not attributable to a delivery delay caused by us, and if our valid price list has changed during this time, then we can demand the list prices valid on the date of delivery instead of the agreed purchase prices. We will submit a correspondingly changed order confirmation to the purchaser before the delivery. In this case, the customer can withdraw its order for the goods having increased prices. He must declare the withdrawal in writing no later than on the 5th business day following receipt of the changed order confirmation:
Sending it by fax or e-mail is sufficient.
§5 Delivery time
5.1 All of the specified delivery dates are non-binding and apply solely as approximations unless we have expressly designated them as binding. In the case of non-binding delivery deadlines, a delivery within 8 days of the specified delivery date is always considered to be on-time.
5.2 If we culpably cannot meet an expressly agreed deadline or fall behind for other reasons, then the purchaser must grant a reasonable grace period which begins with the 1st Monday following the agreed week of delivery. If no delivery is made by the end of this grace period, then the purchaser shall be authorised to withdraw from the contract.
5.3 If we are unable to perform our service in total or partly because of force majeure or other extraordinary circumstances or those which are no fault of our own, then the agreed delivery date shall be extended for the duration of the performance obstacle. The same shall apply for a legal deadline or a deadline set by the purchaser for the provision of the service, particularly for grace periods in the case of delay. The same shall also apply for delivery dates that had explicitly been designated as binding. An example of circumstances that are no fault of our own is the inability of a supplier to deliver the respective goods or services in time.
5.4 The purchaser is not entitled either to withdraw from the contract or to demand compensation for damages until the extended delivery time or performance deadline has lapsed in accordance with Para. 3. If the performance delay lasts longer than 3 weeks, then both the purchaser and we shall be authorized to withdraw if the contract has not yet been executed. This right remains unaffected if the purchaser is contractually or legally (e.g. due to loss of interest) authorised to withdraw without setting a grace period.
5.5 No claims for compensation of any kind can be asserted in the case of a possible delivery delay if it is not intentional or due to gross negligence.
6.1 The shipment is made at the cost of the customer. The risk is transferred to the customer when the wares are loaded, even if free delivery has been agreed on and/or the shipment is made with our own vehicles. We are not obliged to provide transport insurance.
6.2 If nothing else has been expressly agreed on in writing, then we shall be authorised to make partial deliveries in reasonable sizes, which will then be invoiced separately.
7.1 Our invoices must be paid within 20 days with no discount. Invoices for repairs must be paid immediately strictly net.
7.2 The purchaser shall also be in default, even if we have not sent a reminder, if he does not pay the purchase price within 20 days of the due date and receipt of the invoice or a payment schedule of equal value.
7.3 If the purchaser defaults with a payment, then all of his payment obligations from the business relationship with us – even those for which a bill of exchange has been submitted – shall be due immediately. We shall be authorised in this case to demand interest from the effective date at the rate determined by law. The seller reserves the right to provide evidence of greater damage.
7.4 Bills of exchange will only be accepted if this was agreed on in advance and, if discountable, will solely be accepted for fulfilling the agreement, without any discount being granted. Payments by cheques/bills of exchange shall be accepted solely for the sake of fulfilment. The purchase price claim shall not expire until the bills of exchange have been fully redeemed. Exchange and discounting charges shall be separately charged and due immediately with no discount.
7.5 The purchaser is not entitled to compensation, even when complaints or counterclaims have been made, unless the counterclaims have been legally determined, recognised by the seller, or are undisputed. The purchaser is not authorised to assert a right of retention unless his counterclaim is based on the same purchase agreement.
8.1 The purchaser must inspect the goods received for completeness, transport damage, obvious defects, composition and their properties. Complaints about obvious defects must be made by the purchaser to us in writing within 2 weeks of the delivery of the contractual objects.
8.2 We are not obligated to a guarantee if the purchaser does not promptly complain about an obvious defect. If the goods have a defect attributable to us and the customer has promptly complained in writing, then we - with the exclusion of the customer's rights to withdraw from the contract or to reduce the purchase price - shall be required to provide supplementary performance unless we are authorised by legal regulations to refuse supplementary performance. The purchaser must grant us a reasonable supplementary fulfilment deadline for every single defect.
8.3 By choice of the purchaser, the supplementary fulfilment can either be performed by eliminating the defect or by providing new goods. We are authorised to refuse the type of supplementary fulfilment chosen by the customer if it is connected with excess costs. A reduction in the purchase price or withdrawal from the contract by the purchaser is excluded during the supplementary performance. A repair is deemed to have failed after the second futile attempt. If the supplementary performance fails or if the purchaser entirely refuses the supplementary performance, then the purchaser can choose to either demand a reduction in the purchase price or to declare withdrawal from the contract.
8.4 The purchaser may only assert claims for compensation under the following conditions due to the defect if the supplementary performance has failed or is refused by us. The purchaser's right to assert additional claims to compensation under the following conditions shall not be affected by this.
8.5 We are liable without limitation in accordance with the legal regulations for grossly negligent breaches of duty and for damages due to loss of life, bodily injury or harm to health. Apart from that, we are liable solely when the contractual breach of duty is recognized as significant for the achievement of the contractual goal and solely restricted to the amount of the typically foreseeable damage.
8.6 The limits on liability in accordance with Para. 5 correspondingly apply for claims other than contractual claims for damages, particularly for claims due to prohibited actions, with the exception of claims in accordance with the product liability law. It further applies in favour of our employees, workers, staff members, agents and persons employed to perform an obligation.
8.7 If we have provided a guarantee on the quality and/or durability of the goods or parts of them, then we shall also be liable within the scope of this warranty. We are not liable, however, for damages based on the lack of guaranteed quality or durability, but not occurring directly on the wares, unless the risk of such damage is obviously included in the quality and durability guarantee.
8.8 We are also liable for damages caused by simple negligence if this negligence involves the breach of those contractual duties which must particularly be complied with to fulfil the contractual objective (cardinal obligations). We shall be liable, however, solely if the damages are foreseeable and associated with the contract in the usual manner. Apart from that, we shall not be liable for simple negligent violations of secondary obligations not essential to the contract. The limits on liability contained in §7 also apply if the liability for the legal representatives, executives and other assistants of the seller are involved.
8.9 Further liability is excluded without consideration of the legal nature of the enforced claim. If the seller's liability is excluded or restricted, then this shall also apply for the personal liability of its employees, workers, staff members, agents and persons employed to perform an obligation.
§9 Retention of title
9.1 We retain ownership of the goods (conditional goods) until all payments from the purchase agreement are received. The delivered goods shall not be transferred to the purchaser's ownership until said purchaser has fulfilled all of its obligations from the business relationship, including accessory claims, claims for damages and the redemption of cheques and bills of exchange. In the case of the cheque - bills of exchange process, the retention of title shall not expire in any of its forms listed here when the cheque is paid, but rather only with the redemption of the bill of exchange.
9.2 The purchaser must notify us in writing about all third-party accesses, particularly foreclosure measures and other impairments of its assets. The purchaser must compensate us for all damages and costs resulting from a breach of this duty and from actions required to protect against third party accesses.
9.3 If the purchaser fails to fulfil his payment obligation despite our overdue notice, then we can demand the surrender of any conditional merchandise still in his possession without setting a prior deadline. The purchaser shall pay any transport costs accrued for this. Our seizure of the conditional objects always implies a withdrawal from the contract. We are authorised to dispose of the conditional wares following their retention. The earnings from their disposal will be settled against our outstanding receivables.
§10 Place of fulfilment
The place of fulfilment for payments is Oberhaching and for our goods deliveries, the delivery site.
§11 Data processing
The purchaser agrees that data relating to the purchaser received in connection with the business relationship may be processed by us in compliance with the German Federal Data Protection Act (Bundesdatenschutzgesetz) for the performance of our own business purposes and particularly may be archived or passed to a credit information agency in so far as this is done within the context of the purpose of the contract or is necessary to safeguard our legitimate interests and there are no grounds for assuming that the purchaser's interests which are worthy of protection preponderate to the exclusion of the processing, and especially the transmission of this data.
§12 Severability clause
Changes or supplements to the contract or these General Terms and Conditions are only effective if made in writing. Should a regulation of these General Delivery and Payment Conditions be ineffective or infeasible, that will have no impact on the effectiveness of the remaining regulations of these General Delivery and Payment Conditions.
§13 Place of jurisdiction and applicable law
The contractual relationship between the purchaser and us shall be governed solely by German law, even if the purchaser has his residence or business headquarters in a foreign country. The enforcement of the Uniform Law on the International Sale of Goods and the law governing the conclusion of international purchase contracts is excluded.
13.2 The purchaser is not authorised to assign claims from the purchase agreement without the consent of the seller.
13.3 If the purchaser is a merchant, a legal person governed by public law, or a special fund under public law, then the place of jurisdiction for both parts – also for bills of exchange and cheque litigation – shall be Munich. We are also authorised, however, to sue the purchaser at his own place of jurisdiction.
Oberhaching, dated 01/10/2015