Our offers, deliveries and other services are based exclusively on the following General Terms and Conditions. We do not recognize any contradictory or deviating terms and conditions of the customer unless we have expressly agreed to their application in writing. This also applies in the event that we carry out the delivery without reservation in full knowledge of the contradictory or deviating terms and conditions of the customer. All offers are non-binding unless the offer is expressly limited to a certain time period. All information concerning weight, dimensions, performance and the like contained in catalogs, brochures, circulars, advertisements, illustrations and price lists is non-binding. We reserve the right to make changes. Our General Terms and Conditions shall apply to all future transactions with the customer, although we have no obligation to make specific reference to this fact.
2. Terms of payment, default in payment
Unless otherwise agreed, the purchase price is due in full immediately after delivery. The customer is deemed in default, without need for further reminder to this effect, at the latest 30 days after the due date and receipt of invoice/payment schedule or receipt of service. When the customer is in default, we are entitled to charge default interest at a rate of 5% over the respective base rate of the ECB. Both contracting parties have the right to provide evidence of higher or lower damages. If, following contract conclusion, it becomes clear that our claim for payment is at risk due to the customer’s inability to pay, we may assert the rights under Section 321 (plea of uncertainty) of the German Civil Code (BGB). In this case, we are also entitled to make due all non-time-barred claims resulting from the ongoing business relationship with the customer. In all other respects, the plea of uncertainty extends to all other deliveries and services resulting from the business relationship with the customer. The customer is only entitled to offset if its counterclaims have been legally established, undisputed or acknowledged by us. This also applies to any right of retention insofar as its counterclaim is not based on the same contractual relationship.
3. Delivery, force majeure, reservation regarding incoming supplies to us, delay
The transport risk is borne by the customer, no matter which customary means of transport are used for shipping. We have fulfilled our obligations as soon as we have duly dispatched the items. Deliveries are made on a carriage-forward basis. If carriage-paid delivery is required, the resulting transport costs will be charged. This shall not alter the fact that the customer is to bear the transport risk. The delivery times we provide are target times. Even firmly agreed delivery times are not fixed times pursuant to Section 361 of the German Civil Code (BGB) and Section 376 of the German Commercial Code (HGB) unless they are expressly specified as fixed times. If we are unable to effect delivery within an agreed delivery period or at an agreed delivery time, the customer shall grant us a period of grace of at least three weeks. The customer may only set a shorter deadline if there are circumstances that make a period of grace of three weeks unreasonable for the customer and that should have been apparent to us at the time of contract conclusion. The mere fact that the parties have agreed on a binding delivery time is not sufficient in this respect. Only after the expiry of the period of grace can the customer derive any rights from the delay. Where a delivery period is explicitly specified in writing as binding, the delivery period begins as soon as all details pertaining to performance are clarified and both parties agree on all terms of the contract and performance of the contract. Binding delivery times are observed through handover of the products for transport. Our obligation to deliver shall be suspended for any period during which the customer is in arrears regarding an existing liability towards us. Force-majeure events and other unforeseen events, especially procurement, employment, manufacturing and delivery disruptions with us or our suppliers, which we could neither anticipate nor prevent with regard to the duration of their effect, shall release us from our obligation to perform for the duration of the disruption and for a reasonable restart period thereafter and to the extent of their effect - even during an already existing delay - unless the disruption was caused by us intentionally or through gross negligence. If, due to force majeure or other unforeseen events for which we are not responsible, it is not possible to effect the delivery within a reasonable period of time, the customer and we shall have the right to withdraw completely or partially from the contract. The same shall apply in the event of subsequent impossibility of performance of the contract for which we are not responsible. Neither party has the right to claim damages for any such withdrawal. If the party entitled to withdraw wishes to exercise the right of withdrawal, it must give notification to this effect immediately upon recognition of the consequences of the event. Claims for damages by the customer are excluded. The same applies if official and other third-party approvals and documents required for the execution of deliveries are not received in time. In the event of subsequent alteration of the order or if the customer fails to provide, in a timely manner, the information required for execution of the delivery, the delivery period shall be extended for a commensurate period. In the event of a delay in delivery or impossibility of performance for which we are responsible, provided we have not acted with intent or gross negligence, we shall be liable for damages with the following restrictions: - In the event of a delay in delivery, the customer may, in the case of loss, receive compensation at a maximum rate of 0.5% of the price of the outstanding delivery for every full week of delay, but, in any case, no more than 30% of the net value of the outstanding delivery or 10% of the total net value of the order; - any claim for damages due to non-performance is limited to compensation for damages which, at the time of contract conclusion, we could have anticipated may be a possible consequence of infringement of the contract (contract-typical damage). In the case of negligence other than gross negligence, our liability is limited to 50% of the damage incurred. - Further claims arising from delay in delivery shall be ascertained exclusively in accordance with clause 6 of these General Terms and Conditions.
4. Retention of title
We retain title to the goods delivered until all payments due under the supply contract have been received. If the customer is an entrepreneur, we retain title to the goods delivered until all payments arising from the business relationship with the customer have been received. If the validity of this retention of title is linked to special requirements or formal regulations in the country of the place of delivery, the customer is obliged to notify us thereof and ensure fulfillment thereof at its own expense. The customer is entitled to sell the goods to which we have retained title or to which we are entitled to co-ownership (reserved goods) in the ordinary course of business unless the customer is in default of payment or has ceased payments. It may not pledge or assign the reserved goods as security. Sale abroad is only permitted with our prior consent. Should the customer sell reserved goods, the customer hereby assigns to us, until all our claims have been settled, the rights to which it is entitled against its customers arising from the sale, along with all ancillary rights, securities and retention of title. We may demand that the customer notify its customers of the assignment and provide us with all the information and documents necessary for collection. The customer may process the products to which we have retained title in the ordinary course of business unless it is in default of payment or has ceased payments. In the case of processing, it is hereby agreed that the new product resulting from the processing will be subject to a retention of title corresponding to the value of the products to which we have retained title in relation to the value of the other processed items. The customer shall store the new item created by processing for us. The same applies if the customer mixes, blends or combines the products to which we have retained title. The customer is obliged to inform us at any time of the whereabouts and condition of the delivered goods and to allow us to inspect them. In the event of default of payment by the customer or deterioration of its financial situation, we shall be entitled to demand surrender of the goods belonging to us. Subject to mandatory legal regulations, this only constitutes withdrawal from the contract if we expressly declare it as such. In the event goods are returned, appropriate deductions shall be made for wear and tear and damage, and any depreciation or repair costs shall also be taken into account.
The customer is obliged to check the delivered goods immediately after receipt and before processing. Complaints due to incomplete or incorrect delivery or due to obvious defects must be communicated to us in writing within eight days of receipt of the goods. Other defects shall be communicated to us in writing immediately after their discovery and at the latest within eight days. In the case of late notification of defects, warranty rights based thereon in commercial transactions are expressly excluded. The customer’s warranty rights also require that the customer has duly complied with the inspection and complaint obligations incumbent upon it by law. In the case of transport damage, the customer must have the railway company or post office officially record the facts. The deadline for asserting a deficiency claim is one year from delivery of the products. In the case of non-compliance with operating and maintenance instructions, changes to the products, replacement of parts or use of consumables that do not correspond to the original specifications, any claims for defects shall be excluded. Any parts found to be defective as the result of a circumstance existing prior to the transfer of risk will be repaired or replaced, at the customer’s discretion, free of charge. Discovery of any such defect must be communicated to the supplier in writing immediately. Replaced parts shall be the property of the supplier. In order to carry out all subsequent improvements and replacement deliveries deemed necessary by the supplier, the customer must, after consultation with the supplier, grant the necessary time and opportunity; otherwise, the supplier shall be released from liability for any resulting consequences. Only in urgent cases where operational safety is endangered or to avoid disproportionate damages, whereupon the supplier must be informed immediately, the customer is entitled to fix the defect itself, or have it fixed by a third party, and to demand compensation from the supplier for the necessary expenses. Provided the complaint proves justified, of the costs arising from the repair or replacement delivery, the supplier shall bear the costs of the replacement part, including shipping, plus reasonable costs for removal and installation; furthermore, if reasonable to demand so in the individual case, it will also bear the costs of providing its fitters and assistants as required. The customer shall have the right to withdraw from the contract within the scope of the statutory provisions if, taking into account any legal exceptions, the supplier has failed to effect the repair or replacement delivery within a reasonable period of time. Where the defect proves to be insignificant, the customer is entitled only to a reduction in the contract price. The right to reduce the contract price is otherwise excluded. No warranty is given in particular in the following cases: Unsuitable or improper use, incorrect assembly or commissioning by the customer or third parties, natural wear and tear, incorrect or negligent handling, improper maintenance, unsuitable equipment, lack of construction work, unsuitable foundation, chemical, electrochemical or electrical influences - provided they are not our responsibility. If the customer or a third party improperly carries out a repair, the supplier shall not be liable for the resulting consequences. The same applies for any changes made to the goods delivered without the supplier’s prior consent. Legal defect If use of the goods delivered leads to infringement of industrial property rights or copyrights in Germany, the supplier will, at its own expense, essentially procure the right to further use for the customer or modify the goods delivered in a manner that is acceptable for the customer and ensures the protective rights are no longer infringed. If this is not possible on economically reasonable terms or within a reasonable period, the customer is entitled to withdraw from the contract. Under the above conditions, the supplier is also entitled to withdraw from the contract. Furthermore, the supplier shall indemnify the customer from undisputed or legally established claims of the property rights holders concerned. In the event of an infringement of property rights or copyright, the afore-mentioned obligations are final, subject to clause 6 of these General Terms and Conditions. They exist only if - The customer has informed the supplier immediately of any alleged infringements of property rights or copyright, - The customer supports the supplier to an appropriate extent in the defense against the claims asserted and/or allows the supplier to carry out the modification measures according to the afore-mentioned rules, - The supplier retains the right to exercise all defensive measures, including out-of-court settlements, - The legal defect is not based on an instruction from the customer, - The infringement of rights was not caused by the customer having modified the goods delivered without authorization or used them in a non-contractual manner.
6. General limitation of liability
We are liable for breach of contractual and non-contractual obligations, in particular due to impossibility, delay, fault in contract initiation and tort, including for our executives and other vicarious agents, only in cases of intent and gross negligence, limited to the contract-typical damage foreseeable at the time of contract conclusion. These limitations do not apply to culpable violation of essential contractual obligations insofar as achievement of the purpose of the contract is endangered, in cases of mandatory liability under the Product Liability Act, in case of damage to life, body and health and also not if and insofar as we fraudulently concealed any defect in the item or guaranteed the absence thereof. This does not affect the rules regarding the burden of proof. Unless otherwise agreed, contractual claims which the customer incurs against us on occasion of or in connection with the delivery of the goods shall become time-barred one year after delivery of the goods. This period shall also apply to goods which are used in keeping with their customary use for a building and which have caused it to be defective. This does not affect our liability for intentional and grossly negligent breaches of duty or the statute of limitations regarding statutory rights of recourse. The period of limitation shall not restart in the case of postperformance.
The place of delivery is determined according to delivery clauses agreed with the customer. All agreed delivery clauses are to be interpreted according to the latest Incoterms, currently Incoterms 2010. Unless a special delivery clause has been agreed, delivery will always be FCA Herbrechtingen. Unless otherwise agreed, the risk is transferred to the customer as soon as the goods have been made available to the customer. If the goods are forwarded by carrier to the customer, the risk is transferred to the customer no later than the date on which the first carrier accepts the goods. If carriage of the goods is delayed due to circumstances beyond our control, the risk shall pass to the customer upon notification of readiness for shipment. At the customer’s request, all shipments shall be insured for the account of the customer from the time of transfer of risk. In the event of a claim, we shall assign the claims under the insurance step-by-step against provision of the contractual services of the customer to the buyer.
All information relating to handling business transactions shall be processed in accordance with the legal provisions pursuant to the Federal Data Protection Act (Bundesdatenschutzgesetz).
The customer is aware that we store data from the contractual relationship in accordance with Section 28 of the Federal Data Protection Act (Bundesdatenschutzgesetz) for the purpose of data processing and reserve the right to transfer the data to third parties (e.g. insurance companies) insofar as is necessary for fulfillment of the contract.
All agreements and amendments to the contract are only valid if confirmed by us in writing. No claims of the customer arising from this contract may be assigned to a third party without our consent. The place of performance for all deliveries and services is Herbrechtingen. If the customer is a merchant, a legal entity under public law or a special fund under public law, the court of jurisdiction is, at our discretion, either Heidenheim or the court competent for the customer under the legal regulations. This also applies if, at the time of contract conclusion, the customer does not have a general place of jurisdiction in Germany or if, after contract conclusion, the customer moves its place of business or residence abroad or if the customer’s habitual abode is unknown when the action is filed. The contractual relationship is governed by German law with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). Should any of the above provisions be or become invalid or unenforceable, this shall not affect the remaining provisions. The parties hereby undertake to replace the invalid or unenforceable provision with a provision that best approximates, in a legally permissible manner, the economic purpose of the invalid or unenforceable provision. This also applies should any of the afore-mentioned regulations contain a loophole.