Condiciones comerciales generales – Edición enero 2019
1.1 All of our deliveries, services and offers take place solely on the basis of these General Terms and Conditions of Delivery. These are a component of all con-tracts that we enter into with our customers. They are also valid for all future deliveries, services and offers, even if they are again agreed separately.
1.2 We do not recognise conflicting, deviating or supplementary customer terms and conditions, unless we have expressly consented to these. Even if we refer to a letter that contains the terms and conditions of the customer or of a third party or that makes reference to these, this shall not constitute any agreement on our part to the validity of such terms and conditions.
1.3 These General Terms and Conditions of Delivery shall only apply with respect to business persons, not to consumers.
2. Offer, Order, Details, Documents
2.1 Our offers are subject to change and are non-binding, unless they have been expressly designated as a binding offer.
2.2 Our written order confirmation, which can also take place by sending an invoice with the goods, is authoritative for the content of the contract. If the customer has any objections regarding the content of the order confirmation, he must immediately object to the order confirmation. Otherwise, the contract is concluded in accordance with the order confirmation.
2.3 Additions and amendments to the relevant agreements, including to these General Terms and Conditions of Delivery, must be in text form in order to be valid.
2.4 Our details regarding the object of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as our representations of same (e.g. drawings and illustrations) are only approxima-tions, unless usability for the contractually intended purpose requires an exact correspondence. They are not guaranteed characteristics, but rather descriptions or identifications of the delivery or service. Customary deviations and deviations that take place based on legal provisions or that represent technical improve-ments, as well as the replacement of components by equivalent parts, are permitted, provided that they do not adversely affect usability for the contractually intended purpose.
2.5 We reserve ownership and copyrights to all offers and estimates submitted by us as well as to drawings, illustrations, calculations, prospectuses, catalogues, models, tools and other documents and auxiliary materials provided to the customer. Unless we provide our express consent, the customer is not permitted to make these objects accessible to third parties, either as they are or in terms of content, to disclose them or to use or reproduce them himself or to allow them to be used or reproduced by third parties. He must, upon request, return these objects to us in full and destroy any copies if they are no longer required by him in the proper course of business or if negotiations do not lead to the conclusion of a contract.
3.1 These prices are valid only for the scope of service and supply stated in the order confirmation. Extra or special work will be charged for separately. The prices are quoted in euro ex works plus packaging and statutory VAT and, in the case of export deliveries, plus customs duties as well as fees and other public charges.
3.2 Insofar as unforeseeable cost increases occur for us in the period after conclusion of the contract until the execution of the order, e.g. due to increases in wage or material costs or the introduction of substantial increase of taxes or customs duties, we shall be entitled to adjust the prices within the framework of the altered circumstances and without calculating any additional profit. This does not apply if we are in delay with delivery.
3.3. We shall be entitled to only carry out or provide outstanding deliveries or services against advance payment or payment of a security deposit if, after conclusion of the contract, we become aware of circumstances that are likely to substantially reduce the creditworthiness of the customer or jeopardise the payment of our outstanding receivables by the customer arising from the contractual relationship in question. In this case, we can also prohibit the resale and further processing of items delivered under reservation of title.
4. Offsetting and withholding of payment
4.1 The customer is only permitted to offset with a counterclaim that is undisputed or has been determined as legally enforceable.
4.2 The customer is only permitted to assert a right of withholding payment if his counterclaim is based on the same contractual relationship and is undisputed or has been determined as legally enforceable.
5.1 Unless otherwise agreed, deliveries take place ex works. The risk of accidental loss and of accidental deterioration of the goods is transferred to the customer at handover, and in the case of shipment, upon the surrender of the goods to the transport person. If shipping or the handover of the delivery item is delayed due to circumstances attributable to the customer, the risk is transferred to the customer from the day on which the delivery item is ready for shipping and we have notified the customer to this effect.
5.2 If we choose the mode of shipment, the route or the shipping company, we shall only be liable for gross negligence in respect of the relevant selection.
5.3 We shall be entitled to make partial deliveries if
- the partial delivery is usable for the customer within the framework of the contractual intended purpose.
- delivery of the remainder of the ordered goods is assured and
- this does not give rise to any considerable additional work or additional costs for the customer (unless we declare that we are willing to cover these costs).
5.4 Periods and dates planned for our deliveries and services are always only approximate, unless a fixed period or fixed deadline has been promised or agreed. If shipping has been agreed, the delivery periods and delivery dates refer to the time that we hand over the delivery item to the carrier, freight forwarder or other third party commissioned with the transportation.
5.5 The delivery period shall be extended accordingly in the case of actions in the context of industrial disputes as well in the case of the occurrence of unforeseeable obstacles over which we have no influence, insofar as such obstacles delay the completion or delivery of the delivery item. This also applies if these circumstances occur with a subcontractor. In important cases, we will inform the customer immediately of when such obstacles begin and end.
5.6 If we are in default of performance, our liability for damage resulting from delay in the case of slight negligence is limited to compensation for each full week of delay in the amount of 0.5% of the net price in each case, however up to a max-imum of 5% of the net price of the delayed delivery/performance that could not be used for the intended purpose on account of the delay. Liability for intent and gross negligence remains unaffected.
6. Retention of title
6.1 We shall retain title to all goods delivered by us until such time as all receivables from contracts to date have been paid in full. The receivables also include cheques and bills of exchange receivable as well as receivables from open invoices. If a liability from a bill of exchange is established for us in connection with the payment, the retention of title expires only once the claim against us on the basis of the bill of exchange has been excluded.
6.2 If the customer is in default of payment or it becomes apparent that our payment claims are jeopardised due to the customer’s lack of ability to pay, we shall be entitled to demand that the goods be returned on the basis of the retention of title.
6.3 In the case of seizures or other interventions by third parties, the customer must inform us of this immediately. The customer shall bear all costs that must be incurred to remove access and recover the delivery item, unless these costs can be collected from the third party.
6.4 The customer shall be entitled, subject to permissible revocation for good cause, to make use of the delivery item within the proper course of business. Transfer by way of security and pledging are, in particular, not permitted. The goods that are subject to retention of title may only be passed on to the purchaser by the customer if the customer is not in default in fulfilling his obligations towards us.
In the case of resale, the customer hereby assigns to us all claims from the re-sale, in particular claims for payment but also other claims related to the resale, in the amount of our final invoice total (including VAT).
Provided there is no permissible revocation for good cause by us, the customer shall be entitled to collect the assigned claims in trust. The resale of receivables within the framework of actual factoring requires our prior consent. We shall be entitled, for good cause, to inform third-party debtors of the assignment of claims, also in the name of the customer. Once the third-party debtor has been notified of the assignment, the customer’s collection authorisation shall cease. In the event of the revocation of the collection authorisation, we can demand that the customer inform us of the assigned receivables and the respective debtors, provide us with all the particulars required for collection, hand over the requisite documents and inform the debtors of the assignment.
Good cause within the meaning of these regulations exists, in particular, in the event of default in payment, stoppage of payment, the commencement of insolvency proceedings, the protest of a bill of exchange or clear evidence of exces-sive indebtedness or impending insolvency on the part of the customer.
6.5 Treatment and processing of the delivery item by the customer is always carried out for us. We are deemed to be a manufacturer within the meaning of section 950 of the German Commercial Code (BGB) without further obligation. If the delivery item is processed with other items that do not belong to us, we shall acquire co-ownership of the new item in the ratio of the value of the invoice amount to the procurement price of the other processed goods. In all other respects, the item produced through processing, is subject to the same provisions as for the delivery item under retention of title.
6.6 In the event that the delivery item is combined, mixed or blended with movable items of the customer in such manner that the customer’s item is to be considered the main item, the customer hereby transfers to us co-ownership of the overall item in the ratio of the value of the delivery item to the value of the other combined, mixed or blended item. The customer shall preserve ownership for us free of charge. If the delivery item is combined, mixed or blended with movable items of the customer in such manner that the third party’s item is to be considered the main item, the customer hereby assigns to us the claim for payment to which he is entitled against the third party in the amount corre-sponding to the final invoice amount attributable to the delivery item.
The new item that came into being as a result of the combining or mixing or the (co-)ownership rights to the new item to which we are entitled or that are to be transferred to us, as well as the payment claims assigned to us in accordance with the previous paragraph, shall serve to secure our claims in the same way as the delivery item itself.
6.7 Insofar as the retention of title or the assignment of claims is invalid or unenforceable due to mandatory foreign legislation, the security corresponding to retention of title or assignment of claims in such region is deemed to have been agreed. If the cooperation of the customer is required in this regard, he must take all measures necessary to establish and maintain the security.
7. Material defects
7.1 Upon receipt of each delivery, the customer must check that the packaging is complete and undamaged. Complaints must be sent to us immediately in text form. The customer must obtain a statement of facts from the shipping company.
7.2 The customer is obliged to examine the delivery item immediately and to immediately notify us in text form of any recognisable defects. The obligation in respect of examination and notification also extends to deviations in relation to quantity and identity. Hidden defects must be notified in text form immediately once they have been discovered. If the customer breaches the obligation regarding immediate examination and notification, the delivery item shall be deemed approved in accordance with statutory provision in section 377 of the German Commercial Code (HGB).
7.3 Insofar as a defect exists for which we are responsible, we are entitled to provide supplementary performance by, at our discretion, either removing the defect or providing a delivery item that is free of defects. Delivery items replaced within the framework of redelivery become our property. A new limitation period shall not begin on account of the supplementary performance. If supplementary per-formance is refused by us, has failed or is unacceptable to the customer, the customer can assert further rights, and can, in particular, demand a reduction in price or withdrawal from the contract.
7.4 The customer must grant us the required time and opportunity to carry out the supplementary performance. In the event of supplementary performance, we shall be obliged to bear all of the expenses necessary for the purpose of the supplementary performance, especially transport, travel, labour and material costs. If these costs are higher on account of the fact that the delivery item was transported to a location other than the place of delivery, the customer shall bear these costs. If a defect does not actually exist, we can demand compensa-tion from the customer for the costs incurred by us as a result of the unjustified demand for removal of defects (especially inspection and transport costs), unless the lack of defectiveness was undetectable for the customer.
7.5 Changes in the design and/or execution that do not adversely affect either the functioning or the value of the delivery item remain reserved and do not constitute defects. Defects that do not adversely affect or only marginally affect the value and/or fitness for use of the delivery items shall not constitute grounds for claims for defects.
7.6 Claims for defects by the customer especially do not exist in the following cases: Normal wear and tear, unsuitable or improper operation or usage, incorrect assembly or commissioning, unsuitable or improper storage by the customer or third parties; incorrect or negligent handling, improper maintenance, unsuitable equipment, defective assembly work, unsuitable areas of application; chemical, electrochemical or electrical influences; defects based on designs specified or determined by the customer or based on materials, or also other items, provided, specified or determined by the customer. In these cases, customer claims for defects only come into consideration if the customer proves that the defects were neither wholly or partially caused by the aforementioned effects.
7.7 Customer claims on account of material defects become time-barred after 12 months from delivery, or if an acceptance is agreed, from acceptance. If ac-ceptance is delayed for reasons attributable to the customer, the limitation period begins as of delivery. However, the statutory limitation periods apply for items that, in accordance with their customary application, were used for a building, in the case of the fraudulent concealment of a defect and in the case of recourse of the contractor (section 445b BGB), as well as when we have given a guarantee. The statutory limitation periods likewise apply to damage claims by the customer for injury to life, body or health, to claims under the Product Liability Law, as well as in the event of intentional or grossly negligent violation of obligations by us.
8. Compensation for damages
8.1 We shall be liable in case of intent and gross negligence. In the case of minor negligence, we shall only be liable in the event of the breach of essential contractual obligations that arise from the nature of the contract or the breach thereof jeopardises the attainment of the contractual purpose. Even in this case, compensation for damages shall be limited to foreseeable damages typical for this type of contract. In all other respects, customer claims for damages in the case of slight negligence shall be excluded, irrespective of the legal grounds.
8.2 The above limitation of liability does not apply to claims under the Product Liability Law or in cases of injury to life, body or health. In the event of damage claims due to defects, the limitation of liability also does not apply if we fraudulently conceal a defect or have given a guarantee for the characteristics of the item.
9. Place of fulfilment, Place of jurisdiction, Applicable law
9.1 Unless otherwise agreed, the place of fulfilment for delivery and payment and all other liabilities arising from this contractual relationship is the registered office of our company.
9.2 The place of jurisdiction for all legal disputes arising from the contractual relationship as well as in relation to its existence and effectiveness shall, for both parts, be the registered office of our company, provided that the customer is a business or legal person under public law. At our discretion, we may also file a suit at the customer’s registered office.
9.3 The contractual relationship is subject to German law.