General Conditions of Sale

 

§ 1 General; scope of validity

 

(1) These General Conditions of Sale (AVB) shall be valid for all of our business relationships with our customers (hereinafter referred to as: "purchasers“). The General Conditions of Sale shall only apply if the purchaser is an entrepreneur (§ 14 German Civil Code), a legal person under public law or a separate fund under public law.

 

(2) These General Conditions of Sale shall be valid in particular for contracts on the sale and/or the delivery of movable objects (hereinafter also referred to as: "goods“), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 651 German Civil Code). These General Conditions of Sale shall be valid, in their respective version, as a frame agreement also for future contracts on the sale and/or the delivery of movable objects with the same purchaser without the need on our part to each time make reference to them in each and every individual case.

 

(3) Our General Conditions of Sale shall have exclusive validity.  Any deviating, opposing or supplementary General Terms and Conditions of the seller shall only become part of the contract if and to the extent that we have expressly consented to their validity. This consent requirement shall apply in all cases, for example also in cases where we carry out the delivery to the purchaser without reservation, being aware of the General Terms and Conditions of the purchaser.

 

(4) Any agreements with the purchaser individually made in individual cases (including side agreements, amendments and modifications) shall in any case have priority over the present General Conditions of Sale. For the content of such agreements, a written contract or our written confirmation respectively shall be decisive.

 

(5) Any legally relevant declarations and notices which are to be made towards us by the purchaser after contract conclusion (e.g. setting of time limits, notice of defects, declaration of rescission or reduction), shall be in writing to become effective.

 

(6) References to the validity of statutory provisions shall only have clarifying significance. Also without any such clarification, the statutory provisions shall thus be valid as far as they have not directly been amended or expressly excluded in the present General Conditions of Sale.

 

 

§ 2 Contract conclusion

 

(1) Our offers shall be subject to confirmation and non-binding. This shall also apply if we have left to the purchaser any catalogues, technical documentations (e.g. drawings, plans, computations, calculations, references to DIN norms), other product descriptions or documents – also in electronic form – with regard to which we reserve property and copy rights.

 

(2) Ordering goods by the purchaser shall be deemed a binding offer of contract. Should nothing else result from the order, we shall be entitled to accept that offer of contract within 2 weeks after we have received it.

 

(3) Acceptance may either be declared in writing (e.g. by way of an order confirmation) or by delivering the goods to the purchaser.

 

 

§ 3 Delivery time and delivery delay

 

(1) The delivery time shall be agreed individually or indicated by us upon accepting the order. Should this not be the case, the delivery time shall be approximately 6 weeks after contract conclusion. 

 

(2) Should we not be able to adhere to binding delivery times for reasons beyond our control (non-availability of performance), we shall immediately inform the purchaser about this and, at the same time, inform him about the estimated new delivery time. If the performance is not available, even within the new delivery time, then we shall be entitled to rescind the contract wholly or partially; any already rendered counter-performance of the purchaser shall immediately be reimbursed by us. In particular the non-timely self-delivery by our supplier shall be deemed a case of non-availability of the performance in this context if we have concluded a congruent covering transaction. Our statutory rescission and termination rights as well as the statutory provisions on the settlement of contracts in the case of an exclusion of the liability (e.g. impossibility or unreasonableness of performance and/or supplementary performance) shall remain unaffected. Unaffected shall also be the rescission and termination rights of the purchaser in accordance with § 8 of these General Conditions of Sale.

 

(3) The occurrence of our delivery delay shall be governed by the statutory provisions. In any case, a reminder on the part of the purchaser shall be necessary. If we fall behind with our delivery, the purchaser shall be entitled to demand a lump sum compensation for his delay damage. The damage lump sum shall be 0.5% of the net price (delivery value) for each completed calendar week, however, in total a maximum of 5% of the delivery value of the goods delivered belatedly. We shall reserve the substantiation that the purchaser incurred no damage at all or only an essentially smaller damage than the abovementioned lump sum.

 

 

§ 4 Delivery, passing of risk, acceptance, receipt delay

 

(1) The delivery shall be made ex store, being at the same time also the place of performance. Upon request of the purchaser and at his costs, the goods shall be shipped to a different destination (sale by delivery to a place other than the place of performance). Unless agreed otherwise, we shall be entitled to determine the type of shipment ourselves (in particular transport company, shipping route, packaging).

 

(2) The risk of accidental loss and accidental deterioration of the goods shall be passed on the purchaser upon surrender at the latest. However, in the case of the sale by delivery to a place other than the place of performance the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall be passed, as early as upon shipment of the goods, on the forwarder, the carrier or any other person or institution destined to carry out the shipment. Should an acceptance be agreed, that acceptance shall be decisive for the passing of risk. Also for the rest, regarding an agreed acceptance, the statutory provisions of the law on contract for work and services shall be correspondingly valid. If the purchaser is in default of receipt, then this will be considered as surrender or acceptance.

 

(3) If the purchaser falls behind his acceptance, if he omits any assistance or if our delivery is delayed for other reasons which the purchaser is responsible for, then we shall be entitled to demand replacement for the damage resulting therefrom, including additional expenses (e.g. storage costs). For this, we shall calculate a lump sum compensation in the amount of 0.5 % of the net price (delivery value) for each completed calendar week of delay, however, in total a maximum of 5% of the delivery value of the goods delivered belatedly, beginning with the delivery time or – for lack of a delivery time – with the notice that the goods are ready to be shipped.

The evidence as to a higher damage and our statutory claims (in particular replacement for additional expenses, adequate compensation, termination) shall remain unaffected; the lump sum, however, shall be credited against any further monetary claims. The purchaser shall be allowed to furnish evidence as to the fact that no damage at all or only an essentially lower damage compared to the above lump sum has occurred to us.

 

 

§ 5 Prices and payment terms

 

(1) Unless otherwise agreed in individual cases, our current prices at the time of contract conclusion shall be valid, ex stock, plus statutory VAT.

 

(2) In the case of the sale by delivery to a place other than the place of performance (§ 4 section 1) the purchaser shall bear the transport costs ex stock and the costs for a transport insurance possibly desired by the purchaser. Should we not invoice the transport costs actually occurred in the individual case, a transport costs lump sum (excluding transport insurance) in the amount of EUR 200.00 shall be deemed agreed. Any possible customs tariffs, fees, taxes and other public charges shall be borne by the purchaser. Any transport and any other packagings under the packaging regulations shall not be taken back by us; they shall become the property of the purchaser; exempted therefrom shall be pallets.

(3) The purchase price shall be due and payable within 14 days of invoicing and delivery or acceptance of the goods respectively. In the case of contracts with a delivery value of more than EUR 5,000.00, however, we shall be entitled to demand a down payment of 40 % of the purchase price. The down payment shall be due and payable within 14 days of invoicing.

 

(4) Upon expiry of the above payment period, the purchaser shall be in default. During the delay, the purchase price shall be paid interest on at the respectively valid statutory delay percentage rate. We shall reserve the assertion of any further default damage. Towards traders, our claim to the commercial maturity interest (§ 353 German Commercial Code) shall remain unaffected.

 

(5) The purchaser shall only be entitled to offset or retention rights if his claim has been determined in a final and absolute manner or if it is uncontested. In case of delivery defects, § 7 section 6 shall remain unaffected.

 

(6) If after the contract conclusion it becomes apparent that our claim to the purchase price is endangered by a lacking willingness to perform on the part of the purchaser (e.g. by petition for the opening of an insolvency proceeding), then we shall be entitled, under the statutory provisions regarding a refused performance and – after the setting of a deadline, if applicable – to rescind the contract (§ 321 German Civil Code). Regarding contracts on the production of unwarranted objects (individual productions), we may declare the rescission at once; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.

 

 

§ 6 Reservation of title

 

(1) Until all of our present and future claims from the purchase contract and an ongoing business relationship (secured claims) are completely paid, we shall reserve the title in the sold goods.

 

(2) The goods subject to a reservation of title must not be pledged or conveyed as a security to third parties until the secured claims have completely been paid. The purchaser shall immediately inform us in writing if and when third parties access any goods belonging to us.

 

(3) If the purchaser behaves contrary to contract, in particular in cases of non-payment of the purchase price due, we shall be entitled, under the statutory provisions, to rescind the contract or/and demand that the goods be surrendered on the grounds of the reservation of title. Such demand to surrender does not at the same time include the declaration of rescission; however, we shall rather be entitled to only demand that the goods be surrendered and that we reserve a rescission. If the purchaser does not pay the purchase price due, we may only assert these rights if we have given the purchaser in advance an unsuccessful adequate payment limit or if such a time limit is dispensable under the statutory provisions.

 

(4) The purchaser shall be entitled to resale and/or process, in the ordinary course of business, the goods subject to a reservation of title. In that case, the below provisions shall supplementarily be valid.

(a) The reservation of title shall extend to any products which are a result of any processing, mixing or combination of our goods, namely to their full value, whereby we shall be deemed manufacturer. If after the processing, mixing or combination with goods of third parties their property right remains existent, then we obtain a co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. For the rest, regarding the developing product, the same shall apply as for the goods delivered under a reservation of title.

(b) Already now, by way of precaution, the purchaser shall cede any claims towards third parties arising from the resale of the merchandise or of the product, namely in total or in the amount of our possible co-ownership portion in accordance with the above section. We shall accept that cession. The obligations of the purchaser mentioned in section 2 shall also be valid considering the ceded claims.

(c) Along with us, the purchaser shall likewise remain entitled to collect the claim. We shall undertake not to collect the claim as long as: the purchaser meets his payment obligations towards us; does not fall behind his payments; no petition for the opening of an insolvency proceeding is filed; and no other defect in his capacity is at hand. If this is the case, we may demand that the purchaser informs us about the ceded claims as well as about their debtors, that he informs us about any facts necessary for their collections, that he hands over to us the pertinent documents and that he informs the creditors (third parties) about that cession.

(d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release, upon request of the purchaser, securities at our discretion.

 

 

§ 7 Defect claims of the purchaser

 

(1) Regarding the rights of the purchaser for material and legal defects (including wrong and short delivery and improper assembly or defective assembly instructions. Unaffected in all cases shall be the statutory special provisions for final deliveries of goods to consumers (recourse of the supplier under §§ 478, 479 German Civil Code).

 

(2) The basis of our liability for defects shall be, above all, the agreement made as to the nature of the goods. As agreement as to the nature of the goods shall be deemed any and all product descriptions which are subject matter of the individual contract; here, it does not matter whether the product description stems from the purchaser, from the manufacturer or from us.

 

(3) Should the nature not have been agreed, it shall be evaluated under the statutory regulations whether a defect is at hand or not (§ 434 section 1 clause 2 and 3 German Civil Code). However, we shall not assume any liability for public statements of the manufacturer or other third parties (e.g. advertising messages).

 

(4) The defect claims of the purchaser presuppose that he has complied with his statutory examination and complaint obligations (§§ 377, 381 German Commercial Code). If during the examination or at a later moment a defect is ascertained, we shall immediately be informed in writing about this. Such information shall be deemed immediately if it is made within two weeks, whereby the timely sending of that information shall be sufficient to adhere to the time limit. Irrespective of this examination and complaint obligation, the purchaser shall communicate any obvious defects in writing (including wrong and short delivery) within two weeks as from delivery, whereby also in this case the timely sending of the notice is sufficient to adhere to the deadline. If the purchaser omits the proper examination and/or information about defects, our liability for the defect no information was given about shall be excluded.

 

(5) If the delivered object is defective, we may first choose whether we take the action of supplementary performance by removing the defect (defect rectification) or the action of delivering a defect-free object (replacement delivery). Our right to refuse the chosen way of supplementary performance under the statutory provisions shall remain unaffected.

 

(6) We shall be entitled to make the supplementary performance owed dependent on the fact that the purchaser pays the purchase price due. However, the purchaser shall be entitled to retain an adequate portion of the purchase price which is in proportion to the defect.

 

(7) The purchaser shall give us the time and occasion necessary to render the supplementary performance owed, in particular to surrender to us the goods complained about for examination purposes. In the case of a replacement delivery, the purchaser shall return to us the defective object in accordance with the statutory provisions.

 

(8) Any expenses necessary for examination and supplementary performance purposes, in particular transport, route, work and material costs, shall be borne by us if a defect is in fact at hand. However, if it transpires that a demand to remove the defect on the part of the purchaser is unjustified, we may demand the reimbursement of the costs arisen thereby from the purchaser.

 

(9) In urgent cases, e.g. in the case of endangering the operational safety or to avoid improportionate damages, the purchaser shall have the right to remove the defect himself and to demand from us the replacement of the expenses objectively necessary therefor. Any removal of defects on one's own shall immediately be communicated to us, if possible, beforehand. The right to remove defects on one's own shall not exist if we were entitled to refuse a corresponding supplementary performance under the statutory provisions.

 

(10) If the supplementary performance has failed or if a time limit to be set by the purchaser has expired unsuccessfully or is dispensable under the statutory provisions, then the purchaser may rescind the purchase contract or reduce the purchase price. However, in the case of an insignificant defect there shall be no right of rescission.

 

(11) If a defect is based upon the fault of the seller, the purchaser shall only be entitled to demand damages under the prerequisites mentioned in § 8.

 

 

§ 8 Liability for damages due to fault

 

(1) Our liability for damages, for whatever legal reason, in particular due to impossibility, default, defective or wrong delivery, breach of contract, breach of obligations of contract negotiations and tort shall be, if it is dependent on fault each time, limited to this § 8. 

 

(2) We shall not be liable in the case of simple negligence by our organs, legal representatives, employees or other vicarious agents, as far as it is not a breach of contract-essential obligations. Contract-essential are the obligations to timely delivery and installation of the delivery object which must be free from essential defects as well as consultation, protection and custody obligations which shall enable the purchaser to use the delivery object in accordance with the contract or which aim at the protection of life or limb of personnel of the purchaser or the protection of his property from essential damages. 

 

(3) As far as we are liable for damages on the merits under § 8 section 2, that liability shall be limited to damages which we had foreseen upon contract conclusion as a possible consequence of a breach of contract or which we should have foreseen had we applied the customary diligence. Any indirect damages and consequential damages which are the result of damages of the delivery object, shall only be eligible for compensation if such damages can typically be expected during the normal use of the delivery object. 

 

(4) In the case of a liability for simple negligence, our replacement obligation for property damages and other financial damages arising therefrom shall be limited to an amount of EUR 2,000,000.00 EUR per damage event (corresponding to the current amount covered of our product liability insurance or third party liability insurance) even if it is a matter of a breach of contract-essential obligations. 

 

(5) The above liability exclusions and limitations shall be, in their entire scope, also valid in favour of our organs, statutory representatives, employees and other vicarious agents.

 

(6) If we provide technical information or act in a consulting manner, and if this information or advise is not part of the scope of performance contractually agreed and owed by us, then this shall occur free of charge and under the exclusion of any liability.

 

(7) The limitations of this § 8 shall not apply if we maliciously conceal a defect or regarding the liability of the seller for intentional behaviour or grossly negligent behaviour, for guaranteed properties, for harm to life, limb or health or under the product liability act. 

 

 

§ 9 Prescription

 

(1) Deviating from § 438 section 1 number 3 German Civil Code, the general prescription period for claims to material and legal defects shall be one year as from delivery. If an acceptance is agreed, the prescription shall commence upon that acceptance.

 

(2) However, is the merchandise a building or an object which, corresponding to its usual way of use, has been used in a building and has caused its defectiveness (building material), then the prescription period shall be, under the statutory regulations, 5 years as from delivery (§ 438 section 1 number 2 German Civil Code). Unaffected shall also remain any statutory special regulations for surrender claims in rem of third parties (§ 438 section 1 number 1 German Civil Code), in the case of malice of the seller (§ 438 section 3 German Civil Code) and regarding claims of supplier's recourse in the case of a final delivery to a consumer (§ 479 German Civil Code).

 

(3) The above prescription periods of the sale of goods shall also apply to contractual and extracontractual damage claims of the purchaser which are based upon a defect of the merchandise, unless the application of the regular statutory prescription (§§ 195, 199 German Civil Code) would lead to a shorter prescription in individual cases. The prescription periods of the product liability act shall be in any case unfaffected therefrom. For the rest, regarding any claims for damages of the purchaser under § 8, the statutory prescription periods shall exclusively apply.

 

 

§ 10 Choice of law and place of jurisdiction

 

(1) For these General Conditions of Sale and for all legal relationships between us and the purchaser, the laws of the Federal Republic of Germany shall apply, under the exlcusion of any international and supranational (contractual) legal systems, in particular the CISG. Prerequisites and effects of the reservation of title under § 6, however, shall be subject to the laws of the respective whereabouts of the object, should, according to that, the choice of law made in favour of German law, be inadmissible or ineffective.

 

(2) If the purchaser is a trader in terms of the commercial code, a legal person under public law or a separate fund under public law, then the exclusive  - also international - place of jurisdiction for all direct or indirect disputes arising from the contractual relationship shall be our registered office in Schwandorf. However, we shall also be entitled to file an action at the general place of jurisdiction of the purchaser.

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