General Terms and Conditions
1. General Scope of Application
a) The present general terms and conditions of sale and delivery shall apply to all our business relations with our customers (hereinafter referred to as “purchasers”or “purchaser”). The terms and conditions of sale and delivery shall apply only to a purchaser, being an official businessman / contractor / entrepreneur (§ 14 of the German Civil Code, hereinafter referred to as “BGB”) or a corporate body of public law or a separate estate under public law.
b) Our terms and conditions of sale and delivery shall be applicable exclusively. We do not acknowledge contradictory conditions or conditions deviating from our terms and conditions of sale and delivery unless we explicitly agree to their validity in writing. The terms and conditions of sale and delivery shall also be applicable if we deliver goods to the purchaser knowing the contradictory or deviating conditions.
c) The terms and conditions of sale and delivery shall also be applicable to all future transactions with the purchaser.
2. Conclusion of the contract
a) If the order qualifies as an offer as defined under § 145 BGB, we can accept thisoffer within 14 days with a confirmation as defined under lit. b).b) The sales contract shall come about only through our written confirmation of the order. Our invoice shall also be applicable as order confirmation if no written order confirmation has been submitted previously.
3. Offers and Prices
a) Unless otherwise explicitly agreed upon for individual cases in writing, our offers are provisional and not binding. Our prices, valid on the day of delivery, shall be applicable if prices have not been agreed upon while concluding the contract.
b) Documents like figures, drawings, weight and dimension specifications relevant to our offer must be considered only as approximate. They do not represent any agreed characteristics, guarantees or agreed qualities within the meaning of §§ 434(1) 1, 633(2) 1 BGB.
c) We reserve all rights to property and copyright of cost estimates, drawings and other documents. These should not be accessible to any third party. These must be returned immediately at the cost of the purchaser if a contract is not formed.
d) Our prices shall be applicable ex works, exclusive of customs duty, additional import duty plus the statutory turnover tax.
e) A minimum quantity surcharge of € 25.00 shall be calculated for orders of goods below € 300.00 (exclusive of the statutory turnover tax).
f) If a delivery takes place only four months after contract conclusion for reasons within the purchaser’s control, we shall reserve the right to an increase in price in case our purchase prices increase or the fabrication or the sales and marketing costs increase due to circumstances that are not under our control.
4. Delivery, delayed or acceptance, passing the risk
a) Delivery time or deadlines shall be binding to us only if we have confirmed it in writing and if the necessary approvals or documents are available and all technical queries have been clarified. The time is extended by an appropriate period if this is not done. The delivery deadline is considered as met if the delivery goods have left the warehouse before the expiry of this date or if the purchaser has been informed of its readiness for shipment status. Contracts where time is of the essence shall not be concluded.
b) We shall always and without specifying any reasons be authorised to demand payment for a delivery step by step or make the delivery dependent on advance payment, irrespective of other rights.
c) In case of force majeure, we shall be entitled to postpone the delivery for the duration of the hindrance and an appropriate start-up period or withdraw entirely or partially due to the unfulfilled part of the contract. Force majeure acts could also be strikes, lockouts or unforeseeable and unavoidable circumstances that do not allow us to meet delivery deadlines despite efforts within reason. We must give proof for the same.
d) If we have agreed upon with the purchaser in writing that we shall deliver the goods on his/her call, the purchaser must call the total goods within 6 months after contract conclusion.
e) If the purchaser causes default in acceptance or culpably violates other cooperation obligations, for instance the recalling obligation as per lit. d), then we shall be entitled to demand reimbursement for the damages occurred as far as that is concerned, including any extra costs. The due date for demanding the purchase price in this case is the date on which the ready for shipment status is informed. Further claims shall remain unaffected.
f) The risk of incidental downfall or incidental deterioration of the purchased product shall be passed over to the purchaser, when he or she is subject to acceptance or debtor’s default, provided that the conditions in lit. e) exist.
g) The risk shall be passed to the purchaser at the latest with the transfer of goods to the forwarding agent or carrier and also if the goods are being transported by our employees or in case of part deliveries.
h) Part deliveries are permissible, provided that they are reasonable for the receiver. Part deliveries shall be reasonable if they amount to 30 % or more of the respective total delivery.
5. Payment and delay in payment
a) Payments should be made within 10 days with 3 % cash discount or within 30 days without any deduction, in each case after issuing the invoice, unless otherwise agreed upon in writing.
b) We shall be entitled to calculate the amount for interest on arrears at the statutory rate if the payment deadline is exceeded. All granted cash discounts shall be inapplicable in this case.
c) We shall be entitled to demand immediate payment of all pending invoices and cancel the granted credit period if the purchaser delays the payment of the invoice amount or the purchaser‘s ability to pay becomes doubtful or his or her inability to pay becomes known.
d) In case of bank credits, the purchaser shall bear all the arising expenses and costs excluding the credit operation fees charged by the German banks.
e) The purchaser may only set off with claims that are undisputed or have been established as final or absolute. Offsetting with claims other than undisputed claims or claims that have been established as final or absolute shall only be possible with our consent. This shall also be applicable for the assertion of a right of retention.
f) In case of non-acceptance of ordered goods, we shall be entitled to demand 15% of the goods value for costs already incurred by us. We shall allow the purchaser to prove that the damage caused to us is lesser than this lump sum amount or no damage has been caused.
6. Retention of title
a) The delivered goods shall continue to be our property until complete payment of all our present and future claims which are made during the contractual relationship with the purchaser.
b) The purchaser must immediately inform us about any seizures or other interventions by a third party in writing, so that we can file a suit as per § 771 of the German Code of Civil Procedure (hereinafter referred to as “ZPO”). The purchaser shall be responsible for the loss incurred by us if the third party is not in a position to reimburse the legal and out-of-court expenses for the suit as per § 771 ZPO.
c) The purchaser shall be entitled to resell the purchased product in the ordinary course of business. However, he/she shall assign to us already now all claims in the amount of the final invoice amount (including statutory turnover tax) of our claim which accrue to him/her from the resale to his/her customer or a third party, irrespective of whether the purchased product has been resold without or after processing. The purchaser shall be authorised to collect this payment claim even after cession. Our authority to collect the payment remains unaffected by this. We shall however commit ourselves not to collect the payment as long as the purchaser fulfils his/her payment liabilities, does not delay the payment and particularly if no application for adjudication of insolvency proceedings has been filed or payments have not been ceded. In such a case, we can demand that the purchaser discloses the assigned claims and the respective debtors provides us with all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
d) The processing or remodelling of the purchased product shall always be carried out by the purchaser on our behalf. If the purchased product is processed using articles that do not belong to us, then we shall acquire joint ownership of the new product in the ratio of the purchased product value (final invoicing amount, including statutory turnover tax) to the other processed articles at the time of processing. Apart from this, for the product being created through processing the same shall apply as for the goods subject to retention of title.
e) If the purchased product is mixed inseparably with other articles that do not belong to us, then we shall acquire joint ownership of the new product in the ratio of the purchased part value (final invoice amount, including statutory turnover tax) to the other mixed articles at the time of mixing. If it is mixed in such a manner that the product of the purchaser is to be considered as the main product, then it is agreed upon that the purchaser shall transfer the joint ownership rights to us on a pro rata basis. The purchaser shall safeguard such sole or joint ownership for us.
f) We shall commit ourselves to release our securities on the demand of the purchaser insofar as the realisable value of our securities exceeds the claims to be secured by more than 10 %; the selection of the securities to be released is incumbent on us.
Standard products may be exchanged within 10 working days after their receipt, provided that they are unused and free of defects, we have been informed about the exchange in writing along with the reasons and the return is reasonable to us. The purchase price is credited to the purchaser against the return of the undamaged goods after deducting the incurred freight charges and 15 % of the list price as processing fees. The purchaser shall bear the cost and risk of return transport. Custom-made products cannot be exchanged.
a) Defect claims of the purchaser assume that the purchase has fulfilled his/her obligations of examination and notification of defects as per § 377 of the German Commercial Code (hereinafter referred to as “HGB”) within seven days of receipt of the goods. This shall only be applicable if the transaction is a commercial transaction for the purchaser. The timely dispatch shall be sufficient for observance of the deadline. The same shall apply to later detected hidden defects as of the time of their discovery. In the event the obligation to inspect and give notice of defects is violated, the assertion of any warranty claims shall be excluded.
b) If there is a material defect in the product, we shall be entitled to choose whether to remedy the defect or to supply a defect-free product (supplementary performance). If one of the types of this supplementary performance is impossible or unreasonable, we shall be entitled to refuse it. We may also refuse subsequent performance as long as the purchaser does not fulfil his/her payment obligation for the defect-free part towards us.
c) If supplementary performance is not possible or fails, then the purchaser shall have the option to either reduce the purchase price or withdraw from the contract pursuant to the statutory provisions.
d) Unless otherwise specified under lit. e), other purchaser claims – irrespective of what legal reasons – are excluded. This is in particular applicable for claims for damages beyond the purchased product as well as for lost profits and for claims that are not related to defective goods.
e) The exclusion of liability under lit. d) is inapplicable, provided that an exclusion or a restriction of the liability for damages due to loss of life, physical or health injuries has been agreed upon based on deliberate or negligent breach of duty of a legal representative or vicarious agent of the user. The exclusion of liability shall also be inapplicable, provided that exclusion or restriction of liability for other damages has been agreed upon based on a deliberate or grossly negligent breach of duty by the user or a deliberate or grossly negligent breach of duty by the legal representative or vicarious agent of the user. If we violate a material contractual obligation culpably, the liability shall not be excluded, but restricted to the predictable damages typical for the contract. It is otherwise excluded as per the provisions specified under lit. d). The exclusion of liability is also inapplicable in case of a guarantee and warranted quality if a defect covered thereby gives rise to our liability. The above conditions are applicable, mutatis mutandis, in case of cost reimbursement.
f) To the extent permissible, the limitation period for defect claims shall be one year and shall commence with the delivery of the goods to the purchaser. The one-year warranty period shall not be applicable to damages culpably caused and attributable to us arising from any injury to the life, body or health of an individual, and/or damages caused intentionally or with gross negligence or malice on our part, or rights of recourse in accordance with §§ 478, 479 BGB. For the rest, the statutory warranty periods shall apply.
g) As long as we advise our customers as regards the technical application, we do so to the best of our knowledge and belief, however we shall not undertake any liability for the same.The advice does not exempt the purchaser from the obligation to check our products for their suitability for the intended use at his/her own risk.
9. Protection rights of a third party
In case of custom-made products as per the requests or specifications of the purchaser, the purchaser shall be responsible for the fact that the working drawings provided by him / her do not infringe the rights of third parties and the implementation does not violate any copyrights, industrial property rights or other rights of a third party. If claims are made against us due to any violation of such rights, the purchaser must indemnify us from any and all claims in this respect.
10. Place of performance, jurisdiction and governing law
a) The place of performance is Rimsting.
b) If the purchaser is an entrepreneur, then the place of jurisdiction for all, present and future, claims from the business relationship including currency exchange and cheques shall be Rosenheim as per our choice or the registered office of the purchaser.
c) The same place of jurisdiction is applicable for an entrepreneur if the purchaser does not have a general domestic jurisdiction or has shifted his/her domicile or usual place of residence out of the country after conclusion of the contract.
Should individual provisions of this agreement be or become invalid, the validity of the remaining provisions shall not be affected thereby. The invalid provision shall be replaced with a valid provision coming closest to the economic intent of the invalid or impracticable provision. The foregoing provision shall apply, mutatis mutandis, in the event of any contractual gaps.
Version of the terms and conditions: 03/22