Our terms and conditions of sale will apply exclusively; we will not recognize any terms and conditions of the customer that conflict with or deviate from our terms and conditions of sale unless we have expressly agreed to their validity in writing. Our terms and conditions of sale will still apply even if we carry out the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our terms and conditions of sale. All agreements made between us and the customer for the purpose of executing this contract must be set down in writing.
2. Offer—Offer documents—Catalogs
If the customer’s order must be qualified as an offer pursuant to Section 145 of the Civil Code (BGB), we may accept it within 4 weeks. Our offers are always subject to change. We reserve the property rights and copyrights to illustrations, drawings, calculations, and other documents.
The purchaser requires our express written consent before passing them on to third parties. Descriptions of our products are merely statements of quality and in no way constitute a guarantee for the quality of the goods. Technical changes to our products that increase or maintain their value are permitted at any time and without prior notice. A cost estimate obtained from us is subject to a charge if no order is placed.
3. Tools—devices etc.
Tools, devices, and similar equipment which are manufactured or procured for production according to the customer’s documents will remain our property even if they are paid for in full or in part by the customer. In the absence of a special agreement, the scope of services does not include assembly and commissioning of the delivery at the Purchaser’s premises.
4. Prices—Terms of payment—Default
Unless otherwise stated in the order confirmation, our prices are “ex works,” excluding packaging. The statutory value-added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing. The deduction of a discount requires a special written agreement. If we receive payment within 14 days of the invoice date, the customer is entitled to deduct a 2% discount.
The customer will be in default if he does not settle due payments no later than thirty days after receipt of an invoice or equivalent request for payment. We reserve the right to declare default at an earlier point in time by issuing a reminder which is received after the due date. Notwithstanding sentences 1 and 2, the purchaser will be in default if it has been agreed that the purchase price must be paid at a date fixed or determinable in terms of calendar and the Purchaser fails to make payment by that date at the latest. If the customer is in default of payment, we will be entitled to demand default interest in the amount of 8% above the respective base interest rate of the European Central Bank (ECB).
If we are able to prove a higher damage caused by delay, we are entitled to claim this. The customer will only be entitled to set-off rights if his counterclaims have been legally established, are undisputed, or have been recognized by us. Furthermore, he is authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
5. Delivery deadline
The start of the delivery deadline stated by us presupposes the clarification of all technical questions. Unless otherwise agreed, a delivery deadline stated by us is non-binding. If we are in default of delivery for reasons for which we are responsible, the liability for damages for losses which are the direct consequence of the delayed delivery will be limited to the amount of the foreseeable loss. If, after we have already fallen into arrears, the purchaser sets us a reasonable grace period, he will be entitled to withdraw from the contract after the fruitless expiry of this grace period.
If a reasonable grace period has expired fruitlessly, the customer is required to declare within a period of two weeks after the expiry of the grace period whether he withdraws from the contract or continues to insist on performance. Insofar as we are also liable for damages instead of performance, claims in the case of ordinary negligence will be limited to the amount of the foreseeable damage. In the event of ordinary negligence, we will never be liable for consequential damages of the delayed or failed performance, in particular for a loss of profit of the ordering party or other production downtime costs.
Compliance with our delivery duty presupposes the timely and proper fulfillment of the purchaser’s duties. If we prove that we have not been supplied on time by our suppliers despite careful selection of our suppliers and despite conclusion of the contracts on reasonable terms, the delivery period will be extended by the period of the delay caused by the supplier’s failure to deliver on time. In case of impossibility of delivery by the supplier, we are entitled to withdraw from the contract. If the customer is in default of acceptance or breaches other duties to cooperate, we will be entitled to demand compensation for the damage incurred by us, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the object of sale will also pass to the purchaser at the point in time at which the purchaser is in default of acceptance.
6. Delivery, transfer of risk
Unless otherwise stated in the order confirmation, delivery “ex works” is agreed. The risk will pass to the customer when the delivery item has left the factory, even if partial deliveries are made or we have assumed other services, e.g. the shipping costs or delivery and installation. Insofar as an acceptance has to take place, this will be the benchmark for the transfer of risk. It must be carried out immediately on the acceptance date, alternatively immediately after our notification of readiness for acceptance. The purchaser may not refuse acceptance in the event of a non-substantial defect. If dispatch or acceptance is delayed or does not take place as a result of circumstances for which we are not responsible, the risk will pass to the customer from the day of notification of readiness for dispatch or acceptance. Partial deliveries are permissible insofar as they are reasonable for the customer. We reserve the right to make customary excess or short deliveries of up to 10%.
If the customer so desires, we will cover the delivery with transport insurance, whereby the ordering party assumes all the costs incurred.
7. Warranty for defects—Warranty period
The purchaser’s warranty rights presuppose that he has duly fulfilled his duties to inspect and give notice of defects in accordance with Section 377 of the Commercial Code (HGB). Insofar as there is a defect in the purchased item for which we are responsible, we are entitled to choose between rectification of the defect or delivery of a defect-free item. If we are not prepared or not in a position to remedy the defect or make a replacement delivery, in particular if this is delayed beyond reasonable periods for reasons for which we are responsible, or if the remedy of the defect or replacement delivery fails in any other way, the customer will be entitled, at his discretion, to withdraw from the contract or to demand a corresponding reduction in the purchase price. If a reasonable grace period has expired fruitlessly, the customer is required to declare within a period of two weeks after the expiry of the grace period whether he withdraws from the contract or continues to insist on performance. Unless otherwise stated below, any further claims of the purchaser—irrespective of the legal grounds—are excluded.
Therefore, we will not be liable for damages that have not occurred to the delivery item itself; in particular, we will not be liable for loss of profit or other financial losses of the customer. Insofar as liability for such damage does exist, claims for damages will be limited to the amount of the foreseeable damage. The above exemption from liability will not apply if the cause of the damage is based on intent or gross negligence. Furthermore, it will not apply if we have assumed a guarantee for a specific quality of the item and this quality is missing. If we negligently breach a material contractual duty, our liability will be limited to the foreseeable damage. Insofar as claims are asserted due to damage covered by our public liability or product liability insurance, our duty to pay compensation will be limited to the compensation provided by this insurance. The warranty period is 1 year, calculated from delivery of the goods. This period is a limitation period and also applies to claims for compensation for consequential harm caused by a defect, insofar as no claims in tort are asserted.
8. Retention of title
We reserve title to the object of sale until receipt of all payments arising from the business relationship with the purchaser. In the event of any breach of contract by the customer, in particular in the event of default in payment, we will be entitled to exercise our statutory rights and to take back the object of sale. After taking back the object of sale, we will be entitled to dispose of it; the proceeds of disposal will be credited against the customer’s liabilities, less reasonable costs of disposal. In the event of seizures or other interventions by third parties, the purchaser must inform us immediately in writing so that we can take legal action in accordance with Section 771 of the Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of such an action, the customer will be liable for the loss incurred.
The customer will be entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) accruing to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing.
The customer will remain authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment duties from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or there is no cessation of payments. If this is the case, however, we may demand that the customer inform us of the assigned claims and their debtors, provide all information necessary for collection, and hand over the relevant documents. The processing or transformation of the object of sale by the customer will always be carried out for us. If the object of sale is processed with other objects not belonging to us, we will acquire co-ownership of the new object in the ratio of the value of the object of sale to the other processed objects at the time of processing. For the rest, the same will apply to the object created by processing as to the object of sale delivered under reservation.
We undertake to release the securities to which we are entitled at the request of the customer insofar as the value of our securities exceeds the claims to be secured by more than 20%.
9. Place of jurisdiction—Place of performance
If the customer is a company, the place of jurisdiction is the court responsible for Schonach. However, we are also entitled to sue the customer at the court of his place of residence. Unless otherwise stated in the order confirmation, the place of performance for all contractual duties will be Schonach. This contract will be governed exclusively by the laws of the Federal Republic of Germany.