General Terms and Conditions

General Terms and Conditions of Business and Delivery – Status: 01.10.2016

 

  1. General

Deliveries, services and offers are made exclusively based on these terms and conditions. These therefore also apply to all future business relationships, even if they are not expressly agreed again. These provisions shall be deemed to have been accepted at the latest upon receipt of the goods or service. General terms and conditions of the buyer, in particular terms and conditions of purchase, are hereby expressly contradicted, i.e. they are not recognized even if we do not expressly object to them again, after receipt by us. Deviations from these terms and conditions are only effective if we confirm them in writing.

 

  1. Deliveries and services

2.1 All offers are subject to change and non-binding and are subject to self-supply by our supplier. A contract is concluded with the written order confirmation or by acceptance of the delivery/service by the customer.

2.2 We are entitled to withdraw from contracts if facts occur that show that the customer is not creditworthy. The customer agrees that we may query his creditworthiness via SCHUFA, among other things.

2.3 The customer reserves the right to reasonable technical and design deviations from information in brochures, catalogues and written documents, as well as model, construction and material changes in the course of technical progress and further development, without any rights against us being derived from this.

2.4 Unless otherwise agreed, the prices are exclusive of packaging, transport, freight insurance and – with the exception of export transactions – statutory value added tax.

2.5 Unless otherwise stated, we reserve the right to increase the price appropriately if cost increases occur after conclusion of the contract – in particular due to price increases of the suppliers or exchange rate fluctuations.

2.6 The right to reasonable partial deliveries and their invoicing is expressly reserved.

2.7 Agreed delivery dates shall be deemed to have been met if the contractual product has been handed over to the carrier on the agreed delivery date, unless otherwise expressly agreed in writing. If the dispatch of goods ready for dispatch is delayed for reasons for which we are not responsible, the contractual products may be stored at the expense and risk of the customer.

2.8 Delivery dates stated by us are non-binding and are subject to timely self-delivery as well as unforeseen circumstances and obstacles, regardless of whether these occur with us or with the manufacturer, in particular force majeure, state measures, non-granting of official permits, labour disputes of any kind, sabotage, lack of raw materials, delayed material deliveries through no fault of our own. Such events extend the delivery date accordingly, even if they occur during a delay that has already occurred. A grace period, in this case possibly set by the customer, will also be extended by the duration of the unforeseen event. Should we be in default with a delivery for more than four weeks, the customer may withdraw from the contract after a grace period set in writing to the exclusion of other claims pursuant to §§ 280 ff. BGB (German Civil Code). A claim of the customer for damages due to delay in delivery is excluded in any case. We reserve the right to withdraw from the contract if the delay in delivery caused by one of the above events lasts longer than 6 weeks and we are not responsible for this.

2.9 An obligation by us to take back transport packaging, outer packaging or sales packaging within the meaning of the Packaging Ordinance is expressly excluded.

 

  1. Examination and transfer of risk

3.1 The customer must check the goods immediately upon receipt for completeness and conformity according to the invoice. If a written complaint is omitted within 8 days, the goods shall be deemed to have been delivered properly and completely, unless it is a defect that was not recognizable during the inspection.

3.2 Insignificant defects that do not impair the functionality of the delivery item do not entitle the customer to refuse acceptance.

3.3 In principle, the risk shall pass to the customer upon handover of the contractual product to the carrier, freight forwarder, his agents or other persons designated by us. This also applies if carriage paid delivery has been agreed. Incoterms of the currently valid version must be agreed separately in order to become valid. Insofar as dispatch is delayed or becomes impossible through no fault of our own, the risk shall pass to the customer upon notification of readiness for dispatch. If the goods are collected by the buyer, the risk passes to the buyer upon notification of the provision. The provisions of 3.3 also apply to returns to the customer after remedying the defect or providing paid service.

 

  1. Retention of title

4.1 The goods remain our property (reserved goods) until full payment has been made. Any treatment or processing is always carried out for us as the manufacturer within the meaning of § 950 BGB (German Civil Code) without obliging us. In the event of processing or combination of the reserved goods with other goods, we generally acquire a co-ownership share in the new item, namely in the processing in the ratio of the value of the reserved goods to the value of the new item, in the case of combination in the ratio of the value to the value of the other goods. Should the customer become the sole owner, he hereby grants us co-ownership in proportion to the afore mentioned values and keeps the item for us free of charge. If the goods resulting from processing or combination are resold, the subsequently agreed advance assignment shall only apply in the amount of the value of the reserved goods.

4.2 The buyer is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in default. Pledging or assignment by way of security is not permitted. The claims arising from the resale or any other legal reason (insurance, tort, etc.) with regard to the reserved goods (including all balance claims from the current account) are hereby assigned by the buyer to us in full by way of security. We revocably authorize him to collect the claims assigned to us for his account in his own name. The collection authorization is in no way associated with an authorization according to § 185 Abs. 1 BGB, in particular not the consent to dispose of the claim by way of other assignment. An assignment is generally inadmissible, unless it is an assignment by way of real factoring, which is reported to us and in which the factoring proceeds exceed the value of our secured claim. With the crediting of the factoring proceeds, our claim becomes due immediately. The collection authorization can only be revoked if the buyer does not properly meet his payment obligations to us.

4.3 In the event of access by third parties to the reserved goods, the buyer shall point out our ownership and notify them immediately.

4.4 If the buyer is in default of payment or if he culpably fails to fulfil other essential contractual obligations, we shall withdraw from the respective contract after unsuccessful setting of a grace period and shall be entitled to take back the reserved goods or, if necessary, to demand assignment of the buyer’s claims for restitution against third parties. In principle, the return takes place at the current price, but at most in the amount of the original purchase invoice. In the taking back or in the seizure of the reserved goods by us, there is no withdrawal from the contract, unless the Instalment Payment Act applies.

 

  1. Payment

5.1 Depending on the agreement, the invoices are payable in advance, cash on delivery cash, cash on delivery cheque or on collection, unless otherwise agreed. Delivery is generally carriage forward, i.e. at the expense of the buyer by parcel service, forwarding agent or own vehicle, unless expressly agreed otherwise.

5.2 We are entitled, despite the buyer’s provisions to the contrary, to offset payments with his older debts by way of current account. If costs and interest have already been incurred, we are entitled to offset the payment first against the costs, then against the interest and finally against the principal claim. The buyer must be informed of this.

5.3 A payment shall only be deemed to have been made when we can dispose of the amount. Cheques are only accepted on account of performance and are only considered payment after they have been cashed.

5.4 If the buyer is in default, we are entitled to charge interest on the basis of § 247 (1) BGB from the relevant point in time. Proof of a higher interest loss by us is permissible.

5.5 We are entitled to charge a processing and reimbursement fee of a maximum of € 35 per case in the event of chargebacks of payment amounts for which the buyer is responsible, in particular due to a lack of account funds.

5.6 All claims shall become due immediately if the customer is in default with the fulfilment of one or more liabilities, culpably fails to comply with other essential obligations arising from the contract or if we become aware of circumstances that are likely to reduce the creditworthiness of the customer, in particular, among other things, cessation of payments, pending a settlement or insolvency. In these cases, we are entitled to withhold outstanding deliveries or to execute them only against advance payments or securities.

5.7 The buyer is only entitled to offset or exercise a right of retention if the counterclaims have been legally established or are undisputed.

 

  1. Warranty

6.1 If the item is defective within the meaning of § 434 BGB, the buyer may demand supplementary performance under the conditions of § 437 no. 1 BGB. The item is defective if it deviates from the contractually agreed quality. If the quality has not been contractually agreed, the item is free of defects if it is suitable for the use required under the contract or has a quality that is customary for items of the same type and can be expected by the buyer according to the type of item. However, the parties are aware that according to the state of the art it is not possible to exclude defects of the products under all conditions of use

6.2 Excluded from the warranty are in particular defects or damages that are due to: operational wear and tear and normal wear, improper use, operating errors and negligent behavior of the customer, operation with the wrong type or voltage as well as connection to unsuitable power sources, fire, lightning, explosion or mains-related overvoltage, humidity of all kinds, incorrect or incorrect program, software and/or processing data as well as  any consumables, unless the customer proves that these circumstances are not the cause of the defect complained of. The warranty is also void if the serial number, type designation or similar marks have been removed or made illegible as well as in the event of a violation of the manufacturer’s warranty provisions, unless already stated.

6.3 The statutory limitation period for new goods within the EU is generally 1 year, unless other warranty periods have been agreed in an individual contract.  This warranty period begins with the transfer of risk within the meaning of Section 3.3., is a limitation period and also applies to the compensation of consequential damage caused by a defect, insofar as no claims from tort are asserted. The warranty for used products, so. B-goods articles is excluded.

6.4 Obvious defects must be reported in writing by the buyer immediately, i.e. without culpable delay, but at the latest within 8 days. For hidden errors, the legal provisions apply. If the purchased product demonstrably already had a defect at the time of purchase, we primarily have the choice between repair service or replacement delivery. We may refuse supplementary performance if it is de facto impossible or unreasonable or associated with disproportionate costs. We reserve the right to a grace period of 4 weeks from delivery of the defective product for subsequent performance. Only secondarily can the buyer either withdraw from the contract or reduce the purchase price. However, the buyer can only demand rescission of the purchase contract after 2 failures of the supplementary performance. However, the buyer’s withdrawal is excluded if the defect is only minor. In the event of withdrawal or rescission, the customer will be credited with the amount resulting from the purchase price less the benefits of use in terms of value, which result from the ratio of the use of the item by the buyer to the expected useful life.

6.5 In the case of incorrect deliveries for which we are responsible, the customer must return the goods to us within 5 days (export customers within 10 days). After expiry of this period, we reserve the right to buy back the goods only at the current daily price.

6.6 The buyer is obliged to give us the opportunity to inspect and inspect the defective object of purchase. In the event of a warranty claim, the defective part or device and an exact description of the defect with the model and serial number and a copy of the invoice with which the device was delivered must therefore be sent to us for repair. The devices must arrive freely. In the case of devices sent in carriage forward, acceptance by us will be refused. By replacing parts, assemblies or entire devices, new warranty periods apply exclusively to the repaired or replaced components. The warranty is therefore limited only to the replaced part. When sending in the devices to be repaired, the buyer must ensure that data on them, which are essential to him, are secured by copies, as these may be lost in the event of repair interventions. We assume no liability for lost data and consequential damages resulting therefrom.

6.7 In the case of repair services, we shall bear the labor costs as well as costs associated with the repair service. The ancillary costs associated with a replacement delivery, in particular the transport costs for the replacement piece, shall only be borne by us insofar as these other costs are not disproportionate to the order value.  The place of performance for repairs is the factory of the manufacturer of the goods. Unless otherwise agreed, the return delivery must be made “free domicile”.

6.8 Replaced parts shall become our property.

6.9 If the inspection of a notice of defects reveals that a warranty claim does not exist, we are entitled to demand compensation for all expenses. Costs of inspection and repair will be charged at our currently valid service prices. In all other respects, our current Terms of Service shall apply.

 

  1. Liability and further warranty

7.1 We do not assume any warranties of quality from the manufacturers and upstream suppliers. We are also not liable for lost profits or other financial losses of the buyer. Warranty promises of a third-party manufacturer are only passed on by us without, however, taking them over in a legally binding manner ourselves.

7.2 This exemption from liability does not apply if the cause of the damage is based on intent or gross negligence.

7.3 The above exclusions and limitations of liability do not apply to claims under the Product Liability Act. Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, employees, employees, representatives, and vicarious agents.

 

  1. Industrial property rights and copyrights

8.1 The customer is not authorized to change software, adapt it for use on incompatible hardware or edit it in any other way. References to the contractual products on copyrights, trademarks or other property rights may not be removed, modified, obscured or otherwise obscured by the customer.

8.2 Insofar as the delivered products have been manufactured according to designs or instructions of the customer, the customer must indemnify us against all claims asserted by third parties due to the infringement of industrial property rights and copyrights.

 

  1. Export approval

9.1 Products delivered by us are intended for use and to remain in the country of delivery agreed with the customer. The re-export of contract products is subject to approval by the customer and is subject to the foreign trade regulations of the Federal Republic of Germany; for products imported from the USA, the export control regulations of the United States of America. The customer must independently inquire about this according to the German regulations at the Federal Export Office, 65760 Eschborn/Taunus according to the US regulations at the US Department of Commerce, Office of Export Administration, Washington DC 20320.

9.2 Any further delivery of contractual products by the buyer to third parties, with and without our knowledge, requires the transfer of the export permit conditions at the same time. The customer is liable to us for the proper observance of these conditions.

9.3 The buyer is obliged to compensate us for any damage resulting from defective or deliberately incorrect information. In particular, any liability on our part is excluded from the consequences of incorrect information provided by the buyer regarding the VAT exemption or the relevant data.

 

  1. Applicable law

10.1 The law of the Federal Republic of Germany shall apply to the terms and conditions and the entire legal relationship between us and the buyer. The contractual relations between the contracting parties shall be governed exclusively by German law. Insofar as the buyer is a merchant within the meaning of the German Commercial Code (HGB) or a legal entity under public law, the Distance Selling Act (FernAbsG) does not apply as a pure consumer protection law. Crailsheim is the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. However, we are entitled to sue the customer at any other legal place of jurisdiction. Furthermore, Crailsheim is the place of performance and the place of transfer within the meaning of the Packaging Regulations.

10.2 Should one or more provisions of these General Terms and Conditions be or become invalid or contain a loophole, the contracting parties undertake to enter into negotiations with the aim of replacing or supplementing the invalid or incomplete provision that largely corresponds to the economic purpose of the intended provision. The validity of the remaining provisions remains unaffected.

10.3 The order processing within our company takes place with the help of automatic data processing. The customer hereby gives his express consent to the processing of the data that has become known to us in the context of contractual relationships and is necessary for order processing.

 

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