General Terms and Conditions (GTC) for Deliveries and Other Services
1. General
| 1.1 |
The following General Terms and Conditions shall apply to all business relations, including future business relations, between us (hereinafter referred to as the Contractor) and our customers (hereinafter referred to as the Client), who are entrepreneurs within the meaning of § 14 of the German Civil Code (BGB). |
| 1.2 | Insofar as individual contractual provisions exist which deviate from or contradict the provisions of these General Terms and Conditions, the individual contractual provisions shall take precedence without affecting the validity of the remaining General Terms and Conditions. Verbal subsidiary agreements shall only apply if confirmed in writing. E-mail shall be deemed to be the written form. |
| Any deviating, conflicting or supplementary general terms and conditions of the Client shall require the express written acknowledgement of the Contractor. |
2. Conclusion of contract
| 2.1 | Our offers are initially subject to change unless they are designated as binding in writing. We reserve the right to make technical changes as well as changes in form, colour and/or weight, to drawings, illustrations or other performance data, also in information provided by the supplier works, within the scope of what is reasonable. Prices for individual items of an offer shall only be valid if the entire order is placed for this offer. |
| 2.2 | By placing an order – also by electronic means – the Client bindingly declares that it wishes to purchase the ordered delivery and service. The contractor is entitled to accept the contractual offer contained in the order within two weeks of receipt. Acceptance may be declared either in writing, electronically or by delivery of the goods to the principal. The mere confirmation of receipt does not constitute acceptance of the order. Our employees are not authorised to make verbal subsidiary agreements or to give verbal assurances which go beyond the content of the written contract. As a matter of principle, only the manufacturer’s product description shall be authoritative for the public nature of the goods. Statements, recommendations or advertising by the manufacturer do not constitute a contractual description of the quality of the goods. The client does not receive any guarantees in the legal sense from us. Manufacturer’s guarantees remain unaffected by this. |
| 2.3 | Insofar as the contractor provides services and performances free of charge (courtesy services), these may be discontinued at any time and without prior notice. This shall not give rise to any claims for reimbursement or damages. |
| 2.4 |
The Client is entitled to outsource contractual (partial) services to competent third parties. Invoicing shall continue to be carried out by the contractor. |
| 2.5 | For changes or additional requests, the contractor shall prepare an offer upon request. If the offer is rejected by the Client, the original scope of services shall remain unchanged. |
| 2.6 | If the development of programmes (software) or data works/databases is owed, the Principal shall only receive the unrestricted and exclusive right of use and disposal for the entire result if expressly agreed in writing. The source code shall only be handed over if this has been expressly agreed in writing. The right to use a product developed or delivered by the contractor includes the use and reproduction for the client’s internal use. The latter may not make the product accessible to third parties either as a whole or in parts; it may only be passed on to third parties with the written consent of the contractor. |
| 2.7 |
If a separate licence agreement is concluded for the software, this shall cancel any contradictory provisions in the GTC. However, all other provisions shall remain valid. |
3. Delivery
| 3.1 | Delivery shall be ex works. If goods are dispatched, the risk of accidental loss or accidental deterioration of the delivery shall pass to the client upon dispatch to the client, at the latest upon leaving the company. This applies irrespective of whether the goods are dispatched from the place of performance or who bears the freight costs. |
| 3.2 | Partial deliveries are permissible within the framework of the statutory provisions. They shall be deemed to be independent deliveries. |
| 3.3 | The delivery shall be checked by the customer immediately upon receipt for correctness, completeness and freedom from defects. |
| 3.4 | The agreement of delivery dates and delivery periods must be in writing. |
| 3.5 | Events of force majeure shall entitle us to postpone delivery for the duration of the hindrance and a reasonable start-up period. Force majeure shall be deemed to include other circumstances which make delivery considerably more difficult or impossible and for which we or our suppliers are not responsible. If delivery becomes impossible or unreasonable as a result of the aforementioned events, the contracting party affected by this shall be entitled to withdraw from the contract. |
| 3.6 | Our deliveries are subject to correct and timely self-delivery by our suppliers, unless the delay, incorrect delivery or non-delivery is our fault. |
| 3.7 | The goods shall be packaged in a manner customary in the industry. We are entitled to take out transport and breakage insurance at the customer’s expense and to charge a flat-rate transport insurance fee. |
| 3.8 | Defect-free goods delivered by us shall only be taken back in perfect condition and only voluntarily. The return of custom-made products or goods specially procured at the request of the customer is excluded. |
4. Warranty
| 4.1 | Defects must be reported to us in writing immediately, at the latest, however, within two weeks after delivery. Defects which cannot be discovered within this period even after careful inspection shall be notified to us in writing immediately after discovery, at the latest before expiry of the agreed or statutory limitation period. Defective goods shall be kept available for inspection by us in the condition in which they are at the time of discovery of the defect or shall be sent to us upon request. Any breach of the above obligations shall exclude all warranty claims against us. The customer shall bear the full burden of proof for all prerequisites for claims, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect. |
| 4.2 | For defects in the goods, we shall initially provide warranty at our discretion by rectification or replacement delivery. If the subsequent fulfilment fails, the customer may in principle demand a reduction in price or withdraw from the contract at his discretion. However, in the event of only a minor breach of contract, in particular in the event of only minor defects, the client shall not be entitled to withdraw from the contract. |
| 4.3 | Goods sold as inferior quality or used goods are sold to the exclusion of any warranty. |
| 4.4 | If the customer receives defective assembly instructions, we shall only be obliged to supply assembly instructions that are free of defects and this only if the defect prevents proper assembly. |
| 4.5 |
Warranty claims for software/applications shall expire if the customer has made changes to the software or had third parties make changes to the software without prior written consent, unless the customer proves that the defect is not due to these changes. If reported defects are not attributable to the contractor, the client shall remunerate the time spent and the costs incurred according to the usual rates. |
5. Limitations of liability
| 5.1 | We shall be liable for breach of contractual and non-contractual obligations, in particular due to impossibility, delay, culpa in contrahendo and tort, also for our legal representatives, vicarious agents and assistants – only in cases of intent and gross negligence, limited to the typical contractual damage foreseeable at the time of conclusion of the contract. |
| 5.2 | These limitations shall not apply in the event of culpable breach of material contractual obligations, insofar as the achievement of the purpose of the contract is jeopardised, in cases of mandatory liability under the Product Liability Act, in the event of damage to life, limb and health and also not if and insofar as we have fraudulently concealed defects in the item or guaranteed their absence. The rules of the burden of proof remain unaffected. |
| 5.3 | The warranty period is 1 year from delivery. Our liability for intentional and grossly negligent breaches of duty, as well as the limitation of statutory recourse claims § 478 BGB (German Civil Code) shall remain unaffected by this. In cases of supplementary performance, the limitation period shall not start to run again. |
6. Terms of payment and default of payment
| 6.1 | Our deliveries and services are payable 20 days after receipt of the invoice without deduction, unless a deadline is specified on the invoice. If a discount is granted, it is a prerequisite that all previous invoices have been settled by then. The net invoice amount after deduction of discounts, freight, etc. shall be decisive for the discount calculation. |
| 6.2 | We are entitled, despite any provision of the client to the contrary, to set off payments first against the client’s older debts; the client shall be informed of the type of set-off made. We are entitled to set off payments first against the costs, then against the interest and finally against the principal claim. |
| 6.3 |
In the event of default in payment and other conduct on the part of our client in breach of contract, we may withdraw from all contracts and demand compensation, assert our retention of title. |
| 6.4 | We must be notified immediately in writing of any change of address, change in ownership, change in the legal form of the company or any other circumstances affecting the economic circumstances of our customer. If, after the conclusion of the contract, it becomes apparent that our claim for payment is endangered by the customer’s inability to pay, we shall be entitled to the rights under § 321 BGB (German Civil Code) (plea of uncertainty). In this case, we are entitled to demand payment or the provision of security for all claims arising from all existing contracts and to refuse performance of all existing contracts until advance payment or the provision of security. |
7. Retention of title
| 7.1 | Until the fulfilment of all claims (including balance claims from current account) to which we are entitled against our customer for any legal reason now or in the future, we shall be granted the following securities which we shall release on request at our discretion insofar as their value exceeds our claims by more than 10 %. |
| 7.2 | All deliveries shall remain our property until payment has been made in full. Processing or assembly shall always be carried out for us as manufacturer, but without any obligation on our part. If our (co-)ownership expires due to combination or mixing, it is already agreed now that the (co-)ownership of the customer in the uniform object shall pass to us in proportion to the value (invoice value). The customer shall keep our (co-)ownership in safe custody free of charge. Goods to which we are entitled to (co-)ownership are hereinafter referred to as reserved goods. |
| 7.3 | Our principal is entitled to use the reserved goods in the ordinary course of business as long as he is not in default. Pledges or transfers by way of security as well as the agreement of prohibitions of assignment are not permitted. The claims arising from the resale or from any other legal reason (insurance, tort) with regard to the goods subject to retention of title (including all balance claims from the current account) are already now assigned to us by the customer in full. We accept the assignment. All our rights of retention of title (simple, extended and prolonged) shall not expire even if goods originating from us are acquired by another buyer as long as the latter has not paid us for the goods. This applies in particular to sales within the scope of affiliated companies. We revocably authorise the customer to collect the claims assigned to us for our account in his own name. This collection authorisation shall only apply as long as no insolvency petition has been filed against the customer’s assets and it can otherwise only be revoked if the customer does not properly fulfil his payment obligations. |
| 7.4 | In the event of access by third parties to the reserved goods, the customer shall point out our ownership and notify us immediately. |
| 7.5 |
In the event of conduct by the customer in breach of contract – in particular default of payment – we shall be entitled to take back the reserved goods and, if necessary, to demand assignment of our customer’s claims for return against third parties. |
| 7.6 | At our request, the customer shall be obliged to name his purchasers to us, to inform them of the assignment, to provide us with the information required to assert our rights against the purchaser and to hand over documents. We are also entitled to inform the customer of the assignment. |
8. Final Provisions
| 8.1 | The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply. |
| 8.2 | Insofar as the customer is a registered trader within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the place of jurisdiction shall be the registered office of our company. The same shall apply if the customer does not have a general place of jurisdiction in Germany or if the customer’s registered office or usual place of residence is not known at the time the action is brought. |
| 8.3 | Should individual provisions of the contract with the client, including these terms and conditions of sale and delivery, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision. |
