General Terms and Conditions of Sale and Delivery
1. scope of application, information, general
1.1 These General Terms and Conditions of Sale and Delivery apply exclusively between us and our customers. Unless expressly agreed otherwise, deviating terms and conditions of the customer shall not apply.
1.2 Customers within the meaning of these General Terms and Conditions of Sale and Delivery are entrepreneurs and consumers who have reached the age of 18. Sales to consumers who have not yet reached the age of 18 do not take place.
a.) An entrepreneur within the meaning of these GTC is, in accordance with Section 14 of the German Civil Code (BGB), any natural or legal person or a partnership with legal capacity (e.g. public limited company, limited liability company) which, when concluding a legal transaction, is acting in the exercise of its commercial or independent professional activity. A partnership with legal capacity is a partnership that has the ability to acquire rights and enter into obligations.
b.) A consumer within the meaning of these General Terms and Conditions is any natural person who enters into a legal transaction for a purpose that cannot be attributed to their commercial or independent professional activity in accordance with Section 13 of the German Civil Code (BGB).
2 Conclusion of contract, cost estimate, payment
2.1 Offers made by the customer shall only be deemed to have been accepted if expressly declared by us.
2.2 If the customer requests a binding offer from us, a written cost estimate is required. We are bound to the offer submitted in the form of a cost estimate for 14 days. It is sufficient for the conclusion of the contract if the customer accepts the offer submitted in the form of the cost estimate. If the order set out in the cost estimate is not placed by the customer, we are free to charge a fee for the cost estimate. However, this fee shall be agreed with the customer in advance.
2.3 Our invoices are due immediately upon receipt without any deductions. Default of payment shall occur at the latest within 30 days of receipt of the invoice. This shall only apply to consumers if they have been expressly informed of this in our invoice or payment schedule. Timely payment shall only be deemed to have been made if the invoice amount has been received within this period in one of our business accounts for its final free disposal.
2.4 From the time of default, the outstanding claim shall bear interest for consumers at a rate of 5 percentage points above the respective base interest rate. If the customer is an entrepreneur, the outstanding claim shall bear interest at 9 percentage points above the respective base interest rate. However, if a higher interest rate is proven by the use of bank loans etc., we shall be entitled to claim the higher interest rate.
2.5 If the customer is an entrepreneur, he is only authorized to exercise a right of retention to the extent that the counterclaim is based on the same contractual relationship.
2.6 We reserve the right to make technical improvements and design changes due to further development. If such technical improvements and design changes due to further development are made during the acceptance period of an offer submitted by us, the contract shall also be deemed to have been fulfilled by us if we deliver the product in the technically improved and further developed form. We are not obliged to make design changes and technical improvements to products already delivered, provided that the products already delivered are not defective.
3. delivery, delivery periods, transfer of risk
3.1 Deliveries are always made from our warehouses. Unless otherwise agreed, deliveries are subject to a charge. The agreed delivery dates and deadlines are binding. Deliveries are only made within Germany, unless otherwise agreed. The specified delivery period is binding for us.
3.2 The prices quoted by us are for delivery (within Germany) including the applicable VAT, currently 19%, ex warehouse in euros without assembly, unless this has been agreed separately.
3.3 Delivery shall be made at the shipping costs shown in the offer. The shipping costs are also shown including the applicable VAT, currently 19%.
3.4 The respective customer is obliged to notify us immediately in writing if circumstances arise or become apparent to him which indicate that the agreed dates and deadlines cannot be met.
3.5 If the goods are not accepted by the customer at the agreed time, we shall be entitled to set a reasonable deadline for acceptance. After expiry of this period, we shall be entitled to withdraw from the contract and to claim the damages incurred.
3.6 The risk of accidental loss and deterioration of the goods shall pass to the customer at the latest upon handover.
3.7 In the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration shall pass upon delivery of the goods to the person designated to carry out the shipment (e.g. forwarding agent), provided that the customer is an entrepreneur.
3.8 Transfer of risk of other services (e.g. partial deliveries, individual components, spare parts or other accessories), the risk of accidental loss and accidental deterioration of the delivery item shall pass upon handover, in the case of shipment upon delivery to the forwarding agent, carrier or other third party designated to carry out the shipment. The transfer is the same if the customer is in default of acceptance.
3.9 Insurance against transport damage shall only be taken out at the request and expense of the customer / orderer.
3.10 If the Seller's performance is damaged or destroyed by force majeure, sabotage, war or similar circumstances for which the Seller is not responsible after the delivery item or partial deliveries have been dispatched, but before the transfer of risk, we shall be entitled to payment of the value of the damaged or destroyed performance.
3.11 If the customer or his representative accepts material, e.g. from a forwarding agent or similar, he is obliged to check the goods for perfect condition before acceptance and, if necessary, to notify the forwarding agent in writing of any defects.
3.12 Delivered items must be accepted by the customer (even in the case of minor defects), without prejudice to the warranty rights set out below.
4. force majeure
4.1 If compliance with deadlines is due to force majeure, e.g. mobilization, war, unrest or similar events for which we are not responsible, e.g. strike or lockout, the deadlines shall be extended by the periods during which the aforementioned event or its effects persist.
4.2 We shall be liable for delays in performance in cases of intent or gross negligence on our part or on the part of a representative or vicarious agent as well as in cases of injury to life, limb or health caused by slight negligence in accordance with the statutory provisions. In other cases of default, our liability for damages in addition to performance shall be limited to a total of 5% of the value of the delivery and for damages in lieu of performance (including compensation for futile expenses) to a total of 5% of the value of the delivery. Further claims of the customer are excluded - even after expiry of a deadline set for us to perform. This limitation shall not apply in the event of culpable breach of material contractual obligations. However, the claim for damages for the culpable breach of essential contractual obligations is limited to the foreseeable damage typical for the contract, unless another case according to sentence 1 of this paragraph is given immediately.
4.3 The customer's right to withdraw from the contract in accordance with Section 326 (5) BGB remains unaffected.
4.4 A change in the burden of proof to the detriment of the customer is not associated with the above provisions.
5 Claims for defects and warranty
5.1 The statutory warranty regulations apply to contracts with consumers.
5.2 If the customer is an entrepreneur, we shall be liable for material defects in cases of intent or gross negligence on our part or on the part of a representative / vicarious agent as well as in the event of culpably caused injury to life, limb or health in accordance with the statutory provisions. In cases of gross negligence, however, our liability shall be limited to the foreseeable damage typical of the contract, unless another of the exceptional cases listed in sentence 1 or sentence 3 of this paragraph 2 exists at the same time. Notwithstanding the above, we shall be liable under the Product Liability Act for culpable breach of material contractual obligations or insofar as we have fraudulently concealed the defect or assumed a guarantee for the quality of the delivery item. However, the claim for damages for the breach of essential contractual obligations shall be limited to the foreseeable damage typical for the contract, unless another of the exceptional cases listed in sentence 1 or sentence 3 of this paragraph 2 exists at the same time.
5.3 If the customer is an entrepreneur, the limitation period for claims and rights due to defects in the deliveries - regardless of the legal grounds - is 1 year. However, this shall not apply in the cases of § 438 para. 1 no. 1 BGB (rights of third parties to surrender and other rights entered in the land register), § 438 para. 1 no. 2 BGB (buildings and items which are used as intended for a building and cause its defectiveness), and § 634a para. 1 no. 2 BGB (buildings or work whose success consists in the provision of planning or monitoring services for this). The cases included in sentence 2 above are subject to a limitation period of 3 years. Commercial law provisions shall apply to business transactions.
5.4 However, the limitation periods according to paragraph 3 shall apply with the following proviso:
a) The limitation periods shall generally not apply in the case of intent or fraudulent concealment of a defect or insofar as we have assumed a guarantee for the quality of the delivery item.
b) The limitation periods shall also not apply to claims for damages in the event of a grossly negligent breach of duty, in the event of a culpable breach of material contractual obligations - not consisting of the delivery of a defective item - in the event of culpably caused injury to life, limb or health or in the event of claims under the Product Liability Act. The limitation periods for claims for damages shall also apply to the reimbursement of futile expenses.
6. reservation of title
6.1 The delivery item shall remain our property until full payment has been made. Only if the customer is an entrepreneur shall the following paragraphs 2 - 4 also apply. Paragraph 5 applies between us and any customer, be it an entrepreneur or a consumer.
6.2 As long as ownership has not yet been transferred to the entrepreneurial customer, the latter must treat the delivered items with care. We are to be informed immediately if the delivered items are seized or exposed to other interventions by third parties.
6.3 The entrepreneurial customer is entitled to resell the reserved goods in the ordinary course of business. The customer hereby assigns to us the claims arising from the resale of the reserved goods. We accept the assignment. This assignment shall apply irrespective of whether the items have been resold without or after processing. The customer shall remain authorized to collect the claim even after the assignment. This shall not affect our authorization to collect the claim ourselves. However, we shall not collect the claim as long as the customer fulfills his payment obligations to us, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed and payments have not been suspended.
6.4 If our ownership of the reserved items expires as a result of mixing or combining with other items (Sections 947, 948 BGB), the customer's ownership or co-ownership rights to the mixed stock or the uniform item shall pass to us in the ratio of the final invoice amount of the reserved items to the sum of the final invoice amounts of the other mixed or combined items. In this case, the customer's expectant right to the items shall continue in the transformed item. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer shall transfer proportional co-ownership to us and shall keep the resulting sole ownership or co-ownership for us.
6.5 Drawings, illustrations, calculations, technical documents and other descriptions prepared by us shall remain our property. They may only be disclosed to third parties with our consent. Furthermore, we reserve all property rights and copyrights to all drawings and company documents.
7. data protection
7.1 The customer agrees that we may collect personal data for the purpose of invoicing and cash payments, if necessary by presenting identification documents, and store them in accordance with the provisions of the Federal Data Protection Act.
7.2 We use the customer's inventory data exclusively for processing the respective contract. All data is stored and processed by us in compliance with the relevant provisions of the Federal Data Protection Act (BDSG). Personal data is only passed on to third parties to the service partners involved in the processing of the contract, such as the logistics partner commissioned with the delivery and the bank commissioned with payment matters.
7.3 By concluding the contract, the customer agrees to the collection, processing and use of their personal data in accordance with the aforementioned information.
7.4 According to the Federal Data Protection Act, the customer has a right to free information about his stored data and, if necessary, a right to correction, blocking or deletion of this data. If you have any questions regarding the collection, processing or use of your personal data, for information, correction, blocking or deletion of data and revocation of consents granted, please contact the above address and persons. If the personal data we have stored about the customer is incorrect, the data will of course be corrected upon notification by the customer. Customers also have the right to revoke their consent to the storage of their personal data at any time with effect for the future. In the event of a corresponding notification, the personal data stored about the customer will be deleted, unless the data in question is still required to fulfill the obligations of the concluded contractual relationship or statutory regulations prevent deletion.
8. secrecy
8.1 The customer is obliged to maintain all commercial and technical information or knowledge that is not in the public domain and that becomes known through the business relationship between us and the customer as business secrets.
8.2 The customer may only advertise the joint business relationship with our prior written consent.
9. assembly
9.1 We shall only carry out assembly work if this has been agreed in writing with the customer.
9.2 In these cases, invoicing shall be based on the previously agreed lump sums, otherwise on the basis of our hourly rates, mileage rates and rates for the provision of services valid at the time of performance, whereby the hours for arrival and departure as well as the kilometers for the outward and return journey shall also be invoiced by us.
9.3 If a lump sum has been agreed for the installation and if the installation or commissioning is delayed through no fault of the seller, all associated costs for waiting times, travel and other expenses of the installation personnel shall be borne by the customer. If commissioning and acceptance of the system or system parts cannot take place immediately after completion of the installation work for reasons for which the customer is responsible, the customer must pay for the subsequent, additional deployment of installation personnel.
9.4 The customer shall certify the working time / work performance of our employees on the form submitted to him after completion of the work, in the case of longer assembly work on a weekly basis. Any discrepancies must be noted. Travel and waiting hours count as working hours. The absence of a signature does not exclude the calculation of services according to the information provided by the installation personnel.
9.5 The auxiliary personnel and aids required for the assembly work, such as lifting, set-up and transportation equipment, electricity, shall be made available to the Seller's assembly personnel free of charge. Auxiliary personnel shall be deployed in accordance with the instructions of the Seller's fitters. In special circumstances - unless otherwise agreed in writing - the customer shall bear the costs for the use of crane trucks.
9.6 Sufficiently large, dry, heatable and lockable rooms must be provided for the storage of system parts, materials/tools. The customer shall bear the risk responsibility for parts lost on the construction site.
9.7 The customer is obliged to inform himself about the respective status of the structural conditions before the fitters leave. Damage of any kind for which the seller is to be held responsible must be reported to us by the customer before leaving. We shall not be responsible for damages claimed subsequently.
9.8 Weights, dimensions, performance, yield and consumption values specified by us as well as other information on the delivery item are only approximate reference values, irrespective of the type or location of their reproduction. Only those properties of the delivery item which have been expressly guaranteed by us in a written guarantee declaration shall be deemed to be guaranteed within the meaning of § 443 BGB.
9.9 We reserve the right to make changes to the design or form of the delivery item and the conceptual design of the processes in the delivery item if the delivery item is not significantly changed as a result and the changes are reasonable for the customer.
9.10 Other services, such as the assembly, installation and commissioning of the delivery item, shall only be included in our scope of the order if they have been specifically agreed. If such services are undertaken by us, the customer undertakes to cooperate fully in the provision of these services. If we are commissioned with the installation of equipment, the buyer shall create all the conditions in good time at his own expense to enable us to carry out the installation quickly.
9.11 At our request, this includes in particular the provision of suitable German-speaking specialists and assistants, equipment, energy and other work and operating materials. In particular, he must ensure adequate access to the installation site and sufficient space for the provision of the services, create the necessary structural conditions and obtain any necessary permits or expert opinions at his own expense.
9.12 The customer shall bear the costs for any delay and necessary measures resulting from an unprepared installation site. This shall also apply in particular if equipment cannot be installed or has to be stored or returned due to inadequate preparation of the construction site.
10. use of software / liability
10.1 If software is included in the scope of delivery, the customer shall be granted a non-exclusive right to use the software supplied, including its documentation. It is provided for use on the delivery item intended for this purpose.
10.2 The customer may only reproduce, revise and translate the software to the extent permitted by law (Sections 69a et seq. of the German Copyright Act). The customer undertakes not to remove manufacturer's details - in particular copyright notices - or to change them without our prior express consent.
10.3 All other rights to the software and the documentation, including copies, shall remain with us or the software supplier. The granting of sublicenses is not permitted.
10.4 Unless otherwise stated below, further claims by the customer, regardless of the legal grounds, are excluded, unless the damage was caused by intent. We are therefore not liable for damages that have not occurred to the goods themselves, such as loss of profit, loss of savings or other financial losses of the customer. Insofar as the seller's liability is excluded or limited, this shall also apply to the personal liability of our employees, representatives and vicarious agents.
10.5 We would like to point out that it is not possible to rule out errors in the software under all application conditions and combinations according to the state of the art. The object of the delivery is therefore only software that is basically usable in the sense of the product description and on the basis of the operating instructions. Otherwise, no guarantee is given that the software and its data structures are free of errors. Should the software or the hardware equipped with it nevertheless be faulty, the customer may demand a replacement delivery / subsequent performance during the warranty period of one year from delivery. For this purpose, he must return to us any hardware delivered to him and any associated data carriers together with backup copies. The customer must take suitable measures to ensure that damage does not occur or is kept within limits. The customer is responsible for the type and scope of the data backups and releases us from liability for any loss of data.
11 Place of jurisdiction, applicable law, severability clause
11.1 If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction shall be Efringen-Kirchen.
11.2 German law shall apply to all rights and obligations arising from the contract concluded with us. The UN Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.
11.3 Should a provision of this agreement be wholly or partially invalid or lose its legal validity at a later date, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by the statutory provisions.
Status: July 2023