1. Scope, Information, General
1.1 These General Terms and Conditions of Sale and Delivery shall apply exclusively between us and our customers. Unless expressly agreed otherwise, deviating terms and conditions of the customer shall not apply.
1.2 Customers in the sense of these general sales and delivery conditions are entrepreneurs and consumers who have reached the age of 18. A sale to consumers who have not yet reached the age of 18 does not take place.
a.) Entrepreneur in the sense of these General Terms and Conditions of Sale and Delivery is, according to § 14 BGB (German Civil Code), any natural or legal person or a partnership with legal capacity (e.g. stock corporation, limited liability company) who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity. A partnership with legal capacity is a partnership endowed with the capacity to acquire rights and incur liabilities.
b.) A consumer within the meaning of these GTC is, in accordance with § 13 BGB, any natural person who enters into a legal transaction for a purpose that can be attributed neither to his commercial nor to his independent professional activity.
2. Conclusion of Contract, 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 wishes a binding offer from us, a written cost estimate is necessary. We are bound to the submitted offer in the form of a cost estimate for 14 days. For the conclusion of the contract it is sufficient 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 will be agreed with the customer in advance.
2.3 Our invoices are due immediately after receipt without any deduction. Default of payment occurs at the latest within 30 days after receipt of the invoice. This shall only apply to consumers if they have been expressly advised 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 at its final free disposal.
2.4 From the time of default, interest shall be charged on the outstanding claim in the case of consumers at the rate of 5 percentage points above the respective base interest rate. If the customer is an entrepreneur, the outstanding claim shall bear interest at the rate of 9 percentage points above the respective base interest rate. However, if a higher interest rate is proven by taking out bank loans, etc., we shall be entitled to claim the higher interest rate.
2.5 If the customer is an entrepreneur, he shall only be entitled to exercise a right of retention insofar as 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 developments 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 shall not be 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 Delivery shall be made ex our warehouses as a matter of principle. Unless otherwise agreed, deliveries are subject to a charge. The agreed dates and periods of delivery are binding. In principle, delivery shall only be made within Germany, unless otherwise agreed. The stated delivery period is binding for us.
3.2 The prices quoted by us for delivery (within Germany) include the applicable value-added tax, currently 19 %, ex warehouse in Euro without assembly, unless this has been agreed separately.
3.3 The delivery takes place to the forwarding expenses proven in each case in the offer. The shipping costs are also shown including the respective valid value added tax, currently 19 %.
3.4 The respective customer is obligated to immediately inform us in writing if circumstances occur or become recognizable to him, from which it results that the agreed upon dates and periods cannot be kept.
3.5 If the goods are not accepted by the customer at the agreed time, we are entitled to set a reasonable acceptance period. After expiry of this period, we shall be entitled to withdraw from the contract and to claim for the damage 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 – if the customer is an entrepreneur – the risk of accidental loss and accidental deterioration shall pass to the customer upon delivery of the goods to the person designated to carry out the delivery (e.g. forwarding agent).
3.8 Transfer of risk of other services (e.g. partial deliveries, individual components, spare parts or other accessories), in this case 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 order and expense of the customer / purchaser.
3.10 If, after dispatch of the delivery item or partial deliveries, but before the passing of risk, the Seller’s performance is damaged or destroyed by force majeure, sabotage, war or similar circumstances for which the Seller is not responsible, 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 are to be accepted by the customer (even in the case of insignificant defects), without prejudice to the warranty rights regulated below.
4. Force majeure
4.1 If compliance with deadlines is due to force majeure, e.g. mobilization, war, riot 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 continue.
4.2 We shall be liable for delay 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, body 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% and for damages in lieu of performance (including reimbursement of 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 shall be 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 pursuant to Section 326 (5) of the German Civil Code (BGB) shall remain unaffected.
4.4 A change of the burden of proof to the disadvantage of the customer is not connected with the above regulations.
5. Claims for defects and warranty
5.1 In the case of contracts with consumers, the statutory warranty provisions shall apply.
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 cases of culpably caused injury to life, body or health in accordance with the statutory provisions. In cases of gross negligence, however, our liability shall be limited to the foreseeable damage typical for the contract, unless another exceptional case listed in sentence 1 or sentence 3 of this paragraph 2 applies at the same time. Notwithstanding the foregoing, 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 applies 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 – shall be 1 year. However, this shall not apply in the cases of § 438 para. 1 no. 1 BGB (rights of third parties to restitution and other rights entered in the land register), § 438 para. 1 no. 2 BGB (buildings and items which are used for a building in accordance with their intended purpose and cause it to be defective), and § 634a para. 1 no. 2 BGB (buildings or work the success of which consists in the provision of planning or supervision services for such). The cases included in sentence 2 above are subject to a limitation period of 3 years. In the case of business transactions, the provisions of commercial law shall apply.
5.4 However, the limitation periods under subsection (3) shall apply subject to the following proviso:
a) The limitation periods shall generally not apply in the event of intent or fraudulent concealment of a defect or insofar as we have assumed a guarantee for the quality of the delivery item.
b) Furthermore, the limitation periods shall not apply to claims for damages in the event of a grossly negligent breach of duty, in the event – not consisting in the delivery of a defective item – of a culpable breach of material contractual obligations, 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. Retention of title
6.1 The delivery item remains our property until full payment. Only if the customer is an entrepreneur, the following paragraphs 2 – 4 shall apply additionally. Paragraph 5 shall apply between us and any customer, be it an entrepreneur or a consumer.
6.2 As long as the property has not been transferred to the entrepreneurial customer, the customer has to treat the delivered goods 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 regardless of whether the items have been resold without or after processing. The customer shall remain authorized to collect the claim even after the assignment. The authority of us to collect the claim ourselves remains unaffected. However, we shall not collect the claim as long as the customer meets its payment obligations towards us, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended.
6.4 If our ownership of the reserved goods expires as a result of mixing or combining with other items (§§ 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 goods 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 objects shall continue in the transformed object. If the mixing is carried out in such a way that the customer’s item is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis and shall keep the sole ownership or co-ownership thus created for us.
6.5 Drawings, illustrations, calculations, technical documents and other descriptions created by us remain our property. They may only be made available 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, if necessary by presenting identification documents, for the purpose of invoicing and in the case of cash payments, and store such data in accordance with the provisions of the Federal Data Protection Act.
7.2 We use the inventory data of the customers exclusively for the processing of the respective contract. All data is stored and processed by us in compliance with the relevant provisions of the Federal Data Protection Act (BDSG). A transfer of personal data to third parties will only be made to the service partners involved in the execution of the contract, such as the logistics partner responsible for delivery and the credit institution responsible for payment matters.
7.3 With the conclusion of the contract, the customer agrees to the collection, processing and use of his personal data in accordance with the aforementioned instructions.
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. For questions regarding the collection, processing or use of his 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 stored by us 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 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 needed to fulfill the obligations of the contractual relationship that has been concluded, or unless legal regulations prevent deletion.
8.1 The customer is obligated to maintain as a trade secret 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.
8.2 The customer may only advertise the joint business relationship with our prior written consent.
9.1 Assembly work will only be carried out by us if it has been agreed in writing with the customer.
9.2 In such cases, invoicing shall be based on the previously agreed lump-sum amounts, otherwise on the basis of the hourly, kilometer and trigger rates applicable at the time of performance by us, whereby the hours for arrival and departure as well as the kilometers for outward and return journeys 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, after completion of the installation work, commissioning and acceptance of the plant or plant components cannot take place immediately for reasons for which the customer is responsible, the customer must pay for the subsequent, additional installation work.
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 weekly. Any discrepancies are to be noted. Travel and waiting hours are considered as working hours. The absence of a signature shall not preclude the calculation of the services according to the information provided by the assembly personnel.
9.5 The auxiliary personnel and aids necessary for the assembly work, such as lifting, set-up and transport devices, electricity, shall be made available to the Seller’s assembly personnel without charge. Auxiliary personnel shall be used in accordance with the instructions of the Seller’s assembly personnel. In the event of special circumstances – unless otherwise agreed in writing – the customer shall bear the costs for the use of crane trucks.
9.6 Sufficiently large, dry, heated and lockable rooms must be provided for the storage of the system parts, the material / the 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 state of the constructional 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 held responsible for any damage claimed afterwards.
9.8 Weights, dimensions, performance, yield and consumption values stated by us as well as other information on the delivery item are only approximate reference values, irrespective of the type or place of their reproduction. Only such properties of the delivery item which have been expressly warranted by us in a written guarantee declaration shall be deemed to be guaranteed within the meaning of § 443 of the German Civil Code (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 assembly, installation and commissioning of the delivery item, shall only be included in our scope of supply if they have been specifically agreed. If such services are assumed by us, the customer undertakes to cooperate fully in the performance of these services. In the event that we are commissioned with the installation of equipment, the customer shall create all prerequisites in good time at its own expense in order to enable us to carry out the installation quickly.
9.11 At our request, this shall include in particular the provision of technically suitable German-speaking skilled and unskilled workers, equipment, energy and other working and operating materials. In particular, he shall provide adequate access to the installation site and sufficient space for the performance 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 due to an unprepared installation site or due to any resulting delay. This shall also apply in particular if equipment cannot be installed, has to be stored or returned due to the defective preparation of the construction site.
10. Software use / Liability
10.1 If software is included in the scope of delivery, the customer shall be granted a non-exclusive right to use the delivered software including its documentation. It shall be provided for use on the delivery item intended for this purpose.
10.2 The customer may only copy, revise and translate the software to the extent permitted by law (§§ 69a ff. Copyright Act). The customer undertakes not to remove manufacturer’s information – 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 with the software supplier. The granting of sublicenses is not permitted.
10.4 Unless otherwise stated below, further claims of the customer, irrespective of the legal grounds, shall be excluded, unless damage has been caused by intent. Therefore, we shall not be liable for damages that have not occurred to the goods themselves, such as lost profits, lost savings or other financial losses of the customer. Insofar as the liability of the seller is excluded or limited, this also applies to the personal liability of employees, representatives and vicarious agents of us.
10.5 We draw attention to the fact that it is not possible according to the state of the art to exclude errors of the software under all application conditions and combinations. The subject 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. Apart from that, no warranty is given for the faultlessness of the software and its data structures. Should the software or the hardware equipped with it nevertheless be defective, the customer may demand replacement delivery / subsequent performance during the warranty period of one year from delivery. For this purpose, he must return to us the hardware delivered to him and any associated data carriers together with backup copies. The customer must take appropriate measures to ensure that damage does not occur or is kept within limits. The customer shall be responsible for the type and scope of the data backups and shall release us from liability for any loss of data that occurs.
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 any provision of this agreement be wholly or partially invalid or later lose its legal effect, this shall not affect the validity of the remaining provisions. In place of the invalid provision, the statutory provisions shall apply.
Status: July 2023