General Terms and Conditions (GTC), Status 04 / 2022

 

§ 1 Scope, Form

 

(1) These General Terms and Conditions (GTC) apply to all our business relationships with our

customers ("Buyer"). The GTC only apply if the Buyer is an entrepreneur, a legal entity

under public law or a special fund under public law.

 

(2) The GTC apply in particular to contracts for the sale and/or delivery of movable goods ("goods"),

regardless of whether we manufacture the goods ourselves or purchase them from suppliers. Unless otherwise agreed, the GTC in the version valid at the time of the Buyer's order or, in

any case, in the version last notified to the Buyer in text form shall also apply as a framework

agreement for similar future contracts without our having to refer to them again in each individual case.

 

(3) Our General Terms and Conditions shall apply exclusively. Deviating, conflicting or supplementary

general terms and conditions of the buyer shall only become part of the contract if and to the extent

that we have expressly agreed to their validity. This requirement of consent shall apply in any case, for

example even if the Buyer refers to its GTC within the scope of the order and we do not expressly

object to this.

 

(4) Individual agreements (e.g. framework supply agreements, quality assurance agreements) and

details in our order confirmation take precedence over the GTC. In case of doubt, commercial clauses

shall be interpreted in accordance with the Incoterms® published by the International Chamber of

Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.

 

(5) Legally relevant declarations and notifications by the buyer with regard to the contract (e.g. setting

of deadlines, notification of defects, withdrawal or reduction) must be made in writing. Written form

within the meaning of these GTC includes written and text form (e.g. letter, e-mail, fax). Legal formal

requirements and further proof, in particular in the case of doubts about the legitimacy of the person

making the declaration, remain unaffected.

 

(6) References to the applicability of statutory provisions shall only have clarifying significance. Even

without such clarification, the statutory provisions shall therefore apply unless they are directly

amended or expressly excluded in these GTC.

 

 

§ 2 Conclusion of contract

 

(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the

Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations,

references to DIN standards), other product descriptions or documents - also in electronic form - to

which we reserve property rights and copyrights.

 

(2) The order of the goods by the buyer shall be deemed a binding offer of contract. Unless otherwise

stated in the order, we shall be entitled to accept this offer of contract within 2 weeks of its receipt by

us.

 

(3) Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the

goods to the buyer.

 

 

§ 3 Delivery period and delay in delivery

 

(1) The delivery period shall be agreed individually or stated by us upon acceptance of the order.

 

(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible

(non-availability of the service), we will inform the buyer of this immediately and at the same time

inform him of the expected new delivery deadline. If the service is also not available within the new

delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall

immediately refund any consideration already paid by the buyer. A case of non-availability of the

service in this sense shall be deemed to be, in particular, the failure of our supplier to deliver on time if

we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are

not obliged to procure in the individual case.

 

(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory

provisions. In any case, however, a reminder by the buyer is required.

 

(4) The rights of the Buyer pursuant to § 8 of these GTC and our statutory rights, in particular in the

event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of

performance and/or subsequent performance), shall remain unaffected.

 

 

§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance

 

(1) Delivery shall be ex warehouse, which is also the place of performance for the delivery and any

subsequent performance. At the buyer's request and expense, the goods shall be shipped to another

destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed,

we are entitled to determine the type of shipment (in particular transport company, shipping route,

packaging) ourselves.

 

(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the

latest upon handover. In the case of sale by delivery to a place other than the place of performance,

however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of

delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or the person

or institution otherwise designated to carry out the shipment. If acceptance has been agreed, this shall

be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts

for work and services shall also apply mutatis mutandis to an agreed acceptance. Handover or

acceptance shall be deemed equivalent if the buyer is in default of acceptance.

 

(3) If the buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other

reasons for which the buyer is responsible, we shall be entitled to demand compensation for the

resulting damage including additional expenses (e.g. storage costs).

 

 

§ 5 Prices and terms of payment

 

(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the

contract shall apply, ex warehouse, plus statutory VAT.

 

(2) In the case of a sale by delivery to a place other than the place of performance (§ 4 para. 1), the

buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested

by the buyer. Any customs duties, fees, taxes and other public charges shall be borne by the buyer.

 

(3) The purchase price shall be due and payable within 30 days of invoicing and delivery or

acceptance of the goods. However, we are entitled at any time, also within the framework of an

ongoing business relationship, to make a delivery in whole or in part only against advance payment.

We shall declare a corresponding reservation at the latest with the order confirmation.

 

(4) Upon expiry of the aforementioned payment deadline, the buyer shall be in default. During the

period of default, interest shall be charged on the purchase price at the applicable statutory default

interest rate. We reserve the right to assert further damage caused by default. With respect to

merchants, our claim to the commercial interest on arrears remains unaffected.

 

(5) The buyer shall only be entitled to rights of set-off or retention insofar as his claim has been legally

established or is undisputed. In the event of defects in the delivery, the Buyer's counter rights shall

remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these GTC.

(6) If it becomes apparent after the conclusion of the contract (e.g. by filing for insolvency proceedings)

that our claim to the purchase price is jeopardised by the buyer's inability to pay, we shall be entitled to

refuse performance in accordance with the statutory provisions and - if necessary, after setting a

deadline - to withdraw from the contract. In the case of contracts for the manufacture of

unjustifiable items (customised products), we may declare withdrawal immediately; the statutory

regulations on the dispensability of setting a deadline remain unaffected.

 

 

§ 6 Retention of title

 

(1) We retain title to the goods sold until full payment of all our present and future claims arising from

the purchase contract and an ongoing business relationship (secured claims).

 

(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as

security before full payment of the secured claims. The buyer must inform us immediately in writing if

an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to

the goods belonging to us.

 

(3) In the event of conduct by the buyer in breach of contract, in particular in the event of non-payment

of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the

statutory provisions or/and to demand surrender of the goods on the basis of the retention of title. The

demand for return does not at the same time include the declaration of withdrawal; we are rather

entitled to demand only the return of the goods and to reserve the right of withdrawal. If the buyer

does not pay the purchase price due, we may only assert these rights if we have previously set the

buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable

according to the statutory provisions.

 

(4) Until revoked in accordance with (c) below, the Buyer is authorised to resell and/or process the

goods subject to retention of title in the ordinary course of business. In this case, the following

provisions shall apply in addition.

 

(a) The retention of title extends to the products resulting from the

processing, mixing or combining of our goods at their full value, whereby we are deemed to be the

manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right

of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the

processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to

the goods delivered under retention of title.

 

(b) The Buyer hereby assigns to us by way of security all

claims against third parties arising from the resale of the goods or the product in total or in the amount

of our co-ownership share, if any, pursuant to the preceding paragraph. We accept the assignment.

The obligations of the buyer mentioned in paragraph 2 shall also apply with regard to the assigned

claims.

 

            (c) The buyer remains authorised to collect the claim in addition to us. We undertake not to

collect the claim as long as the buyer meets his payment obligations towards us, there is no deficiency

in his ability to pay and we do not assert the retention of title by exercising a right pursuant to para. 3.

If this is the case, however, we may demand that the buyer informs us of the assigned claims and their

debtors, provides all information necessary for collection, hands over the relevant documents and

informs the debtors (third parties) of the assignment. Furthermore, in this case we are entitled to

revoke the buyer's authorisation to further sell and process the goods subject to retention of title. (d) If

the realisable value of the securities exceeds our claims by more than 10%, we shall release securities

of our choice at the buyer's request.

 

 

§ 7 Claims for defects of the buyer

 

(1) The statutory provisions shall apply to the rights of the buyer in the event of material defects and

defects of title (including incorrect and short delivery as well as improper assembly/installation or

defective instructions), unless otherwise stipulated below. In all cases, the special statutory provisions

on the reimbursement of expenses in the case of final delivery of the newly manufactured goods to a

consumer shall remain unaffected, unless an equivalent compensation has been agreed, e.g. within the scope of a quality assurance agreement.

 

(2) The basis of our liability for defects is above all the agreement reached on the quality and the

presumed use of the goods (including accessories and instructions). All product descriptions and

manufacturer's specifications which are the subject of the individual contract or which were publicly

announced by us (in particular in catalogues or on our Internet homepage) at the time of the

conclusion of the contract shall be deemed to be an agreement on quality in this sense. Insofar as the

quality was not agreed, it shall be assessed in accordance with the statutory regulation whether a

defect exists or not. Public statements made by the manufacturer or on his

behalf, in particular in advertising or on the label of the goods, take precedence over statements made

by other third parties.

 

(3) In the case of goods with digital elements or other digital content, we only owe provision and, if

applicable, updating of the digital content insofar as this expressly results from a quality agreement in

accordance with para. 2. In this respect, we do not assume any liability for public statements made by

the manufacturer and other third parties.

 

(4) As a matter of principle, we shall not be liable for defects of which the buyer is aware at the time of

conclusion of the contract or is not aware due to gross negligence. Furthermore, the

buyer's claims for defects presuppose that he has fulfilled his statutory duties of inspection and

notification. In the case of building materials and other goods intended for

installation or other further processing, an inspection must in any case be carried out immediately

before processing. If a defect becomes apparent during delivery, inspection or at any later time, we

must be notified of this in writing without delay. In any case, obvious defects must be notified to us in

writing within 7 working days of delivery and defects which are not recognisable during the inspection

must be notified to us within the same period of time after discovery. If the purchaser fails to carry out

the proper inspection and/or give notice of defects, our liability for the defect not reported or not

reported in time or not reported properly shall be excluded in accordance with the statutory provisions.

In the case of goods intended for incorporation, attachment or installation, this shall also apply if the

defect only became apparent after the corresponding processing as a result of the breach of one of

these obligations; in this case, there shall in particular be no claims by the buyer for reimbursement of

corresponding costs ("removal and incorporation costs").

 

(5) If the delivered item is defective, we may initially choose whether to provide subsequent

performance by remedying the defect (rectification) or by delivering a defect-free item (replacement). If

the type of subsequent performance chosen by us is unreasonable for the buyer in the individual case,

he may reject it. Our right to refuse subsequent performance under the statutory conditions remains

unaffected.

 

(6) We are entitled to make the subsequent performance owed dependent on the buyer paying the

purchase price due. However, the buyer is entitled to retain a reasonable part of the purchase price in

relation to the defect.

 

(7) The buyer shall give us the time and opportunity required for the subsequent performance owed, in

particular to hand over the goods complained about for inspection purposes. In the event of a

replacement delivery, the buyer shall return the defective item to us at our request in accordance with

the statutory provisions; however, the buyer shall not have a claim for return. Subsequent performance

shall not include the dismantling, removal or disassembly of the defective item or the installation,

attachment or assembly of a defect-free item if we were not originally obliged to perform these

services; claims of the buyer for reimbursement of corresponding costs ("dismantling and assembly

costs") shall remain unaffected.

 

(8) We shall bear or reimburse the expenses required for the purpose of inspection and subsequent

performance, in particular transport, travel, labour and material costs and, if applicable, removal and

installation costs, in accordance with the statutory provisions and these GTC if there is actually a

defect. Otherwise, we may demand reimbursement from the buyer of the costs arising from the

unjustified request to remedy the defect if the buyer knew or was negligent in not knowing that there

was actually no defect.

 

(9) In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the

buyer has the right to remedy the defect himself and to demand reimbursement from us of the

expenses objectively necessary for this. We are to be informed immediately of such self-execution, if

possible in advance. The right of self-execution does not exist if we would be entitled to refuse a

corresponding subsequent performance in accordance with the statutory provisions.

 

(10) If a reasonable period to be set by the buyer for subsequent performance has expired

unsuccessfully or is dispensable under the statutory provisions, the buyer may withdraw from the

purchase contract or reduce the purchase price in accordance with the statutory provisions. In the

case of an insignificant defect, however, there is no right of withdrawal.

 

(11) Claims of the buyer for damages or reimbursement of futile expenses shall also exist in the case

of defects only in accordance with § 8 and are otherwise excluded.

 

 

§ 8 Other liability

 

(1) Insofar as nothing to the contrary arises from these GTC including the following provisions, we

shall be liable in accordance with the statutory provisions in the event of a breach of contractual and

non-contractual obligations.

 

(2) We shall be liable for damages - irrespective of the legal grounds - within the scope of fault liability

in the event of intent and gross negligence. In the case of simple negligence, we shall be liable,

subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), only

 

a) for damages arising from injury to life, body or health,

 

b) for damages arising from the breach of a material contractual obligation (obligation the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.

 

(3) The limitations of liability resulting from para. 2 shall also apply to third parties as well as to

breaches of duty by persons (also in their favour) whose fault we are responsible for according to

statutory provisions. They do not apply insofar as a defect has been fraudulently concealed or a

guarantee for the quality of the goods has been assumed and for claims of the buyer under the

Product Liability Act.

 

(4) Due to a breach of duty that does not consist of a defect, the buyer may only withdraw or terminate

if we are responsible for the breach of duty. A free right of termination of the buyer is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

 

 

§ 9 Limitation

 

(1) Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation

period for claims arising from material defects and defects of title shall be one year from delivery.

Insofar as acceptance has been agreed, the limitation period shall begin with acceptance.

 

(2) The above limitation periods of the law on sales also apply to contractual and non-contractual

claims for damages of the buyer based on a defect of the goods, unless the application of the regular

statutory limitation period would lead to a shorter limitation period in individual

cases. Claims for damages by the buyer pursuant to § 8 para. 2 sentence 1 and sentence 2(a) as well

as pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the

statutory limitation periods.

 

 

§ 10 Choice of law and place of jurisdiction

 

(1) These GTC and the contractual relationship between us and the Buyer shall be governed by the

laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the

UN Convention on Contracts for the International Sale of Goods.

 

(2) If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under

public law or a special fund under public law, the exclusive - also international - place of jurisdiction for

all disputes arising directly or indirectly from the contractual relationship shall be our registered office

in Stuttgart, Germany. The same shall apply if the buyer is an entrepreneur within the meaning of § 14

BGB (German Civil Code). However, we are also entitled in all cases to bring an action at the place of

performance of the delivery obligation in accordance with these GTC or a prior individual agreement or

at the general place of jurisdiction of the buyer. Overriding statutory provisions, in particular on

exclusive jurisdiction, shall remain unaffected.