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General Terms and Conditions (AGB)
§ 1 Scope, written form
1.1. Our general terms and conditions apply exclusively. They apply to business (§ 14 BGB), legal entities of public law and special public funds. Variations in general business conditions of the customer are not accepted, unless we have agreed to their validity in writing. Our terms and conditions also apply if we deliver without reservations, knowing of deviating general terms and conditions of the customer.
1.2. All agreements made between us and the customer for the execution of this contract are set forth in writing in this contract. This provision shall apply, in particular, to the assumption of guarantees.
1.3. These conditions also apply to all future business with the customer, even if they are not explicitly mentioned again during future agreements.
1.4. It is agreed pursuant to § 312 sentence 2 g of paragraph 2 BGB that the customer waives compliance with the information requirements in the electronic commerce pursuant to § 312g paragraph 1 No. 1 and 2 BGB in conjunction with Article 246 § 3 BGB.
§ 2 Offers, signing of contracts, contract documents, part of the contract
2.1. Our offers are subject to change. We can accept contract deals by separate order confirmation or delivery of goods within one week.
2.2. Illustrations and information in promotional material, and other illustrations are not binding.
2.3. Unless otherwise agreed, the agreed drawings, samples, descriptions and other documents are considered as technical contract documents, whereby the commercial material standards, notations and DIN tolerances are relevant for commodities. Declarations of weights are not binding in this case.
§ 3 Prices, terms of payment, pre-payment, right of withdrawal, default, redemption, right of retention, set-off, counterclaim
3.1. All prices are in EUR, excluding freight, insurance, customs duties or other charges and within Germany include the applicable VAT. With the currently valid price list online all previous offers are no longer valid. Exclusively the prices reported in our order confirmation apply.
3.2. Unless stated otherwise in the order confirmation goods have to be picked up at our premises.
3.3. If not otherwise agreed, payment has to be made in advance by prepayment via bank transfer, or by direct debit – for existing customers – against invoice, the payment must be made within 10 days of the invoice without deduction.
3.4. We are not obliged to accept payment by check or draft. If we accept such payments, this shall be done only for the sake of fulfillment.
3.5. If the contracting party is in default with at least two installments in the case of part payments, we shall be entitled to demand the entire claim, including amounts from other invoices, even if we have accepted cheques or bills of exchange. In this case, the papers for immediate cash payment will be returned.
3.6. If after the contract conclusion a significant change or deterioration of the financial circumstances of the customer occurs, through which our claim is at risk, or if such a situation of the customer already existed at the time the contract was concluded, however was known only in hindsight, we can refuse the performance of our obligations until the delayed payments or other services have been effected. This provision shall apply, in particular, to cases involving unsuccessful enforcement measures, protest of a bill of exchange, protest of a cheque, a personal application for insolvency, debt deferral endeavors, liquidation or similar actions. We may grant the contracting party a period of notice to make counter-performance or provide security. Provided under the aforementioned conditions, the counter-performance or security is not provided, despite a deadline, we have a right of withdrawal.
3.7. If the customer is in default of payment, the interest rate during the delay in payment will be 8% above the base rate. We reserve the right to demonstrate that the level of damage caused by default is higher and shall be entitled to assert them. In default of payment we are entitled, unless a grace period according to the law is not necessary, to take back the goods after expiration of a grace period set by us, if appropriate, to enter the premises of the customer and remove the goods. We may also prohibit the evacuation of the delivered goods.
3.8. If we take back goods supplied by us, they shall be credited to the contracting part with a suitable deduction, irrespective of the enforcement of any other compensation claims, and shall be offset against our outstanding claim. The customer shall be entitled to provide documentary evidence of a lower reduction in value in an individual case.
3.9. Our claims may only be offset against undisputed or final and absolute claims. The counterclaim is excluded. The customer shall only be entitled to exercise a right of retention if the customer’s claim is based on the same contractual relationship.
§ 4 Release from obligation, delivery time, right of withdrawal, damages caused by delay
4.1. Proper and timely self-delivery shall be reserved at any time.
4.2. The delivery-/ collection time begins with the date of order confirmation.
4.3. Unless otherwise agreed, we shall not be liable for delivery delays due to force majeure or other circumstances for which we are not responsible, in particular disruptions of traffic or business interruptions through no fault of our own, strikes, lockouts, shortages of raw materials or wars. If the goods are not available within the agreed pick up time, the pick-up time will be extended reasonably. If there is an obstacle to delivery in this case over and beyond the reasonably extended delivery period, we shall be entitled to withdraw from the contract.
4.4. If we are unable to maintain the agreed delivery time, the customer shall be obliged, at our request, to state within a reasonable period of time whether he still insists on delivery of the goods. If the customer does not declare his intent, we shall be entitled to withdraw from the contract or cancel it at the end of a reasonable length of time.
4.5. If we are in default the following shall apply:
4.5.1. If a transaction for a delivery by a fixed date has been agreed or the other contracting party can assert a claim that his interest in fulfillment of the contract has ceased or the default is due to an intentional breach of contract for which we, our representatives or our agents are responsible, we shall be liable for damage caused by default according to legal regulations. In the case of a grossly negligent breach of contract for which we are responsible, our liability for damage caused by default shall be restricted to the foreseeable typical damage that occurs.
4.5.2. If we, our representatives or our agents have infringed a significant contractual obligation and there is no liability case according to legal regulations within the meaning of No. 4.5.1., then the suppliers liability for damage caused by delay shall be limited to the foreseeable, typical occurring damage.
4.5.3. In other cases, our liability for delay shall be limited to a maximum of 5 % of the delivery value.
4.5.4. Other legal claims of the customer are not excluded.
§ 5 Passing of risk
Unless otherwise stated in the order confirmation, pick-up or delivery “ex works” and for items on stock “ex warehouse” has been agreed. If shipment takes place, this is always done, even when delivered from a different place of performance – also for carriage paid delivery “delivery free at place” and/or delivery by their own people or vehicles – at the risk of the customer.
§ 6 Claims for defects
6.1. Delivered/collected goods shall be examined by the customer without undue delay or no more than one week after delivery respectively collection as far as the normal course of business warrants it. If a defect is discovered, we must be notified immediately. Should the customer refrain from notification, the goods are deemed to have been accepted, unless it involves a deficiency that was indiscernible at the time of the inspection. If such a defect should subsequently be discovered, the complaint shall be launched immediately, otherwise the goods shall be assumed to be accepted despite the defect. § 377 German Commercial Code (HGB) shall remain unaffected. The customer is not absolved from inspection liability even in the event of recourse in accordance with § 478 BGB. If he fails in these cases to inform us about the defect enforced by his customer, the goods shall be deemed to have been approved even in view of this defect.
6.2. If there is a defect, we shall be entitled, taking into account the nature of the defect and the legitimate interests of the client, to determine the supplementary performance. The supplementary performance applied with these contracts, is deemed to have failed only after the unsuccessful third attempt. This subsection shall not apply in the event of recourse according to § 478 BGB.
6.3. In the event of supplementary performance on account of defects, we shall only be obliged to pay the necessary related costs, in particular transport costs, travelling expenses, labour costs and material costs, if they do not increase due to the fact that the item was moved to a different location than the customer’s head office or business site to which delivery was made. This subsection shall not apply in the event of recourse according to § 478 BGB.
6.4. The warranty claims of the customer, including claims for damages shall expire after one year. This does not apply in the case of recourse according to § 478 BGB, it is also not applicable in the cases of §§ 438 paragraph 1 No. 2 BGB and § 634a paragraph 1 No. 2 BGB. This shall also not apply to claims for damages for injury to life, body or health or due to gross negligence or willful breach of duty by us, or our agents. The sale of used goods takes place under the exclusion of any warranty.
§ 7 Liability for compensatory damages and reimbursement of expenditure
7.1. In the case of our contractual liability for damages the following applies:
7.1.1. If the claims are due to an intentional breach of an obligation by us, our representatives or our agents, we shall be liable for compensation according to the legal regulations. If the claims are based on a grossly negligent breach of an obligation by us, our representatives, or agents, our liability shall be limited to the foreseeable, typically occurring damage.
7.1.2. Unless we, our representatives, or agents have culpably violated an obligation, whose fulfillment mainly facilitates the proper performance of the contract, whose neglect endangers to serve the purpose of the contract and on which abidance the customer constantly trusts – and there is no liability case according to legal regulations within the meaning of No. 7.1.1 – the liability is limited to the foreseeable, typically occurring damage.
7.1.3. Except as provided in paragraphs 7.1.1 and 7.1.2, our liability for damages is excluded. The same also applies if against us as supplier claims of recourse according to § 478 BGB are asserted.
7.2. The exclusions and limitations in section 7.1 also apply to other claims, in particular tort claims or claims for reimbursement of expenses in lieu of performance.
7.3. The exclusions and limitations in section 7.1 do not apply pursuant to any existing claims according to §§ 1, 4 Product Liability Act or for culpable injury to life, body or health. They do also not apply, where we have assumed a guarantee for the quality of our goods or performance or took over a procurement risk and the warranty case has occurred or the procurement risk has become true.
7.4. Any liability arising from the assumption of a procurement risk affects us only when we have taken the risk of procurement in writing.
7.5. Unless the limitations of liability according to section 7.1, in accordance with requirements of the manufacturer’s liability according to § 823 of the BGB apply, our liability is limited to the compensation of the insurance. To the extent that it is not or only incompletely made, we shall be liable up to the amount insured for liability. This subsection shall not apply in case of culpable injury to life, body or health.
7.6. Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives and agents.
7.7. For damage caused by delay, there is a special regulation in § 4 Paragraph 4.5.
7.8. A reversal of the burden of proof is not associated with the aforementioned provisions
§ 8 Complementary and alternative arrangements for international contracts
8.1. If the customer has its offices outside the Federal Republic of Germany the following rules shall apply:
8.1.1. We shall not be liable for the permissibility of the contractual use of the supplied goods according to regulations in the recipient country. We are also not liable for any local taxes.
8.1.2. We are not liable for delivery obstacles triggered by government measures, in particular import or export restrictions.
8.2. If the customer has its offices outside the Federal Republic of Germany and is the United Nations Convention on Contracts for the International Sale of Goods (CISG , Vienna UN sales convention ) in its amended application, the following additional rules apply:
8.2.1. Amendments or cancellations must be in writing.
8.2.2. Instead of Articles 6 and 7 the following applies:
22.214.171.124. We shall only be liable for damages to the customer in accordance with statutory provision if such is based on willful or grossly negligent violation of the agreement by ourselves, our representatives or our agents. We shall be liable pursuant to the statutory provisions, insofar as we culpably violate an essential contractual obligation. The above limitation shall not apply to any existing claims under §§ 1, 4 of the German Product Liability Act or to claims due to injury caused by the goods of life, or of a person’s body.
126.96.36.199. Do delivered products not conform with the contract, the customer has the right to cancel the contract or receive a replacement delivery only, if claims against us are excluded or it is unreasonable for the customer to utilize the conforming goods and to claim the remaining damages. In these cases, we are firstly entitled to correction of faults. If the repair fails and/or leads to an unreasonable delay, the customer shall be entitled at its option to declare the cancellation of the contract or to require replacement. The customer is also entitled to such rights if the elimination of defects causes any inconvenience, which the customer cannot reasonably be expected to accept, or if reimbursement of any potential expenses incurred by the customer is uncertain.
§ 9 Guarantee of retention of title
9.1. The ownership of the delivered or collected goods remains reserved, until receipt of all payments under the contract, with the existence of an ongoing business relationship until receipt of all payments from this. This applies also if our demands were included in a current invoice and the balance is drawn and recognized as well as for future claims.
9.2. The customer is obliged to treat the delivery or collected goods carefully, especially to store them professionally, he is further obliged to insure them at his own expense against fire, water and theft at the original value.
9.3. In the event of attachments and seizures or other third party dispositions, the customer for the protection of our interests (i.e. legal actions in accordance with § 771 ZPO), has to inform us immediately in writing. To the extent to which the third party shall not be able to reimburse judicial and extra-judicial costs of an action according to § 771 ZPO, the customer shall be liable for our loss.
9.4. The customer has the right to recall the subject of delivery or collection within his normal business transactions; however at this instant he assigns to us the claims which under the resale arise against his purchaser or a third one, to the amount of the value of the conditional commodities regardless of whether the goods supplied have been resold without or following processing. The value of the conditional commodities shall be the invoice value agreed with us (including VAT). If the resold conditional commodity is in our co-ownership, the assignment of the claims shall include the sum that corresponds to the value of the share of the co-ownership. The customer shall not be entitled to dispose of the goods in any other way, in particular to pledge them or transfer them by way of security.
9.5. The customer shall also be authorized to collect the claim emanating from the resale also subsequent to their assignment. Our authorization to collect the account receivable ourselves shall remain unaffected. We undertake not to do so, as long as the client duly meets its payment obligation from the revenue earned, has not defaulted on payment and in particular no application for the opening of insolvency proceedings has been filed or a suspension of payment has occurred.
However if this is the case, we can demand that the customer discloses the assigned claims and their debtors, provides all information necessary for collection hands over the relevant documents and informs its debtor of the assignment.
9.6. We deem the processing or transformation of the delivered and collected goods by the client as always realized for us. The expectant right of the customer on the delivered goods continues in the transformed object. If the delivered goods are combined with other goods, which we did not deliver, we shall acquire proportionate co-ownership in respect of the new goods determined by the ratio of the amount of our invoice to the invoiced amount of the other goods used at the time of the processing. For the object arising from such processing for the rest the same applies as for the goods delivered under reservation.
9.7. If picked up or delivered goods are inseparably mixed, blended or connected with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the objective value of the delivered goods to the other goods at the time of mixing, blending or combining. If the process is in such a way that the object of the customer is to be regarded as the main item, is hereby agreed that the customer shall transfer ownership to us and keep the sole or co-ownership for us without charge.
9.8. In order to secure our claims against the customer, he shall also assign to us the claims amounting to the value of the reserved goods with all incidental rights and priority over the other claims, which accrue to him through combination of the reserved goods as an integral part with a property, a ship, a ship structure or aircraft or another party against a third party. § 9, paragraph 4, sentence 2 and 3 shall apply accordingly.
9.9. In order to secure our claims against the customer, he shall also assign to us the claims amounting to the value of the reserved goods with all incidental rights and priority over the other claims, which he acquires through the sale to a third party of his own property, ship, a ship structure or aircraft with which he combined the reserved goods as an integral part. § 9, paragraph 4, sentence 2 and 3 shall apply accordingly.
9.10. On customer’s request we undertake to release the securities to which we are entitled, as far as the realizable value of our securities exceeds the claims to be secured by more than 10 % or the nominal value of the securities by more than 50 %; the choice of the securities to be released is within our scope of responsibility.
§ 10 Special rules for services
10.1. Where we provide services (consulting, measurement, etc.), agreed deadlines are fixed dates, unless they have been agreed between the customer and ourselves differently. If the client defaults in accepting the services offered by us or if the client does not provide the assistance incumbent on him despite receiving a reminder and extended period of time from us, we are entitled to cancel the contract immediately. Our right to compensation for additional expenses as well as for damages caused by the default remains unaffected. This also applies if the customer does not make use of his right of cancellation.
10.2. With the compensation payment, the customer receives the unrestricted, exclusive and transferable right of use for all products, documents and reports created by us in the framework of the contract.
10.3. We are obliged to keep and treat confidential toward third parties all the processes and information that we became knowledge of during our work for the customer and which are marked or designated as confidential also after completion of the order. Both parties undertake to process or use the personal data only for the contractual purposes; these data shall be secured against unauthorized access and disclosed only with the consent of the individual concerned. The confidentiality and privacy obligations apply indefinitely and regardless of whether an offer is accepted and a service is rendered or not.
§ 11 Applicable Law, Place of Performance, Jurisdiction
11.1. The law of the Federal Republic of Germany shall apply to this contract.
11.2. Place of performance for all services under this contract is the registered office of our company.
11.3. Jurisdiction is 69118 Heidelberg, Germany. However, we reserve the right to take legal action against the customer at the location of his registered office.
§ 12 Other
If any provision of this agreement is or becomes invalid, the validity of the other provisions of this agreement shall not be affected.