General terms and conditions
1. Scope of Application
1.1 We conclude contracts with enterprises (§§ 310 (1), 14 German Civil Code – BGB), legal persons under public law and special funds under public law exclusively on the basis of these General Terms and Conditions of Sale (GTC) in the respective version valid at the time.
1.2 Our GTC also apply to all future contracts in the context of the ongoing business relationship with the customer. The customer can at any time retrieve and download our GTC Sale on the Internet at www._______.de. However, we are also pleased to send our GTC to the customer without charge at any time upon request.
1.3 Any terms and conditions of business of the customer are hereby rejected. Any terms and conditions of business of the customer which conflict with our GTC or deviate from them as well as any unilateral business conditions do not apply even if we have not expressly rejected them or provide or accept services without reservation, unless we have expressly agreed to such conditions in writing in the specific individual case in question.
2. Contract Conclusion and Documents
2.1 If the order of the customer has been preceded by our offer, the contract is concluded upon the order being placed. If the order deviates from our offer, the contract is concluded only upon our acknowledgement of the order. If our offer is made “without engagement and subject to change“, we may freely revoke our offer until the order is received in the was that we have had the opportunity to take notice of the order in the ordinary course of business.
2.2 If the customer submits an offer to us, the contract is only deemed consummated upon delivery of our order acknowledgement or invoice or upon delivery of the goods to the customer. Our order acknowledgement resp. invoice is decisive for the scope and the content of the contract.
2.3 The customer is bound to his offer for at least 4 weeks from receipt by us.
3. Prices, Price Adjustment; Payment
3.1 Our prices are ex works (Incoterms 2010) and do not include packaging freight, postage, indexation and transport insurance unless agreed otherwise. The value added tax has to be paid on top. In the case of any agreed delivery abroad, the customer bears the cost of customs clearance. Discount, rebates and bonuses are only granted if specifically agreed in writing.
3.3 Our claims are due on the earliest collection date stated in our notice of readiness for delivery resp. if delivery to the customer has been agreed upon delivery to the customer unless a later payment date has been agreed in writing.
3.4 Payments are to be made in EURO free of deductions, expenses and costs to the bank institute designated by us. If a payment is made in another currency on the basis of a special written agreement, the relevant exchange rate shall be the EURO reference rate of the European Central Bank at the time when payment is due.
3.5 Payment and discount periods granted by us shall begin with the date of invoice. Agreed discounts are only permissible if our customer is not in default with other claims from our business relationship. Discount only refers to the net invoice value excluding freight.
3.6 The relevant credit entry on our business account is decisive for the timeliness of payment.
3.7 We reserve the right to use any incoming payments to satisfy the oldest invoice items due including any accrued interest and costs, and that in the following order: costs, interest, principal claim.
3.8 If the customer fails to make payment within two days after delivery of our notice of readiness for delivery at the latest resp., if delivery to the customer has been agreed, within two days after delivery, the customer is deemed to be in default unless our invoice has been delivered to the customer before or any agreed time limit for payment has lapsed before. In these cases, the customer is already deemed to be in default if the customer fails to make payment within one day after delivery of the invoice resp. by the agreed time limit at the latest. In commercial business relationships we first charge interest from the due date (according to sec. 3.3) in the amount of 5 percentage points p.a. and from the time of the occurrence of default in the amount of 9 percentage points p.a. above the base interest rate valid at the time.
3.9 Any payment deadlines granted are deemed cancelled if we become aware of a substantial worsening of the financial situation of the customer or if, despite appropriate request, our customer provides no information or incorrect or incomplete information about his creditworthiness. In these cases, any outstanding claims fall due immediately to the extent that the customer is not entitled to any rights to refuse payment. Furthermore, we can exercise our rights arising from any lien or security interest created in our favour and we can make any outstanding deliveries dependent on the provision of adequate security or prepayment. If the customer refuses to provide this, we are entitled to withdraw from the contract to the extent that we have not yet fulfilled our obligations to perform, without the customer being entitled to deduce any rights from such withdrawal.
3.10 Bills of exchange and cheques will only be accepted if specifically agreed and will only be accepted on account of performance which means that the debt will only be deemed extinguished if the bill of exchange or cheque has actually been paid. Bills of exchange need to be discountable. Bill and discount expenses are borne by the customer; they are charged from the date when the invoice amount was due and are due immediately. The maturity date of the bill must not be later than 90 days from the invoice date.
3.11 The customer may only set off against our claims if his counterclaim is undisputed, has been recognised by us or has been established by final and unappealable judgment or is ready for a decision in the way that the facts which are essential for the decision of the case have been sufficiently clarified, or his claim originates from the same contractual relationship from which we derive our claim. The same applies to the assertion of a right to refuse performance or a right of retention. The customer may only assert a right of retention if we have not provided appropriate security despite a written request by the customer.
4. Delivery, Passing of Risk; Delivery Times, Contractual Penalties
4.1 The applicable term of delivery is delivery ex works (Incoterms 2010). The price risk and the performance risk are transferred to the customer with effect from the end of our usual business hours at the earliest collection date stated in our notice of readiness for delivery but in the case of an obligation to deliver a non-specific object which is characterized by general features only the said risks will only be transferred if we have actually separated the goods to be collected or delivered. The goods will only be dispatched if so agreed in writing, at the customer’s risk.
4.2 Fixed deadlines require our written confirmation. Partial deliveries in reasonable quantities are admissible.
4.3 Delays in delivery due to extraordinary unforeseeable events occurring at our company or at our suppliers or service providers, such as labour disputes, natural disasters such as floods, low or high water on the waterways, acts of terrorism, sovereign acts, in particular country embargoes, restrictions on goods, as well as other impairing foreign trade measures, in particular those of the Federal Republic of Germany, the European Union or the USA, operational disruptions (e.g. fire, machinery or roller breakage, shortage of raw materials or energy), obstruction of traffic routes, delays in import/customs clearance, riots, etc. shall release us from the obligation to deliver for as long as they last, or in the event of impossibility of performance in full, insofar as we are not responsible for the cause of the delay in delivery. If the delay in delivery lasts longer than 6 months, each contracting party may withdraw from the contract, further claims are excluded.
4.4 If and to the extent that we are unable to make deliveries because we are not supplied by our own suppliers or are supplied in insufficient quantities or with defects, although we have concluded congruent covering transactions, we shall be released from our obligation to perform and may withdraw from the respective contract concerned. We will inform our customer of this. We shall reimburse our customer for any consideration already rendered. In such a case, our customer is not entitled to any further claims.
4.5 We accept no penalty for non-performance or improper performance.
5.1 Insofar as our products are delivered with software, the contract concluded with the customer also covers the permanent provision of the software specified in the order as object code.
5.2 The software is only provided pre-installed on the delivered products.
5.3 Upon full payment of the purchase price, the customer shall receive a non-exclusive right to use the software, unlimited in time. The permitted use includes the installation of the software, loading it into the main memory as well as the designated use by the customer. The right of use only applies to use on the hardware supplied by us. The number of licenses is based on the respective underlying contract.
5.4 Under no circumstances does the customer have the right to rent out or otherwise sublicense the purchased software, to reproduce or make it available to the public by wire or wireless means, or to make it available to third parties, whether for payment or free of charge.
5.5 The customer is only entitled to decompile and duplicate the software if this is provided for by law and we have not made the necessary information available to the customer on request within a reasonable period.
5.6 A warranty with regard to the software exists only for the software in its delivery status or insofar as changes to the software (updates) are carried out by us. We shall not be liable for changes made by the customer to the software, including updates carried out by the customer.
5.7 We assume no warranty that the software will function without interruption or error.
6. Industrial Property Rights
6.1 By concluding the contract, the customer does not acquire any rights to illustrations, drawings, models, plans, samples and other documents, unless this is absolutely necessary for the execution of the contract. All our rights to the illustrations, drawings, models, plans, samples and other documents, including copyrights, trademark rights, company rights and rights to know-how, therefore remain with us. Without our consent, illustrations, drawings, models, plans, samples and other documents may not be reproduced or distributed by the customer or disclosed to third parties.
7. Condition oft he Goods; Warranty
7.1 The operational abrasion of wearing parts does not constitute a defect and therefore does not constitute a warranty claim by the customer.
7.2 Defects that occur due to unsuitable or improper use, faulty assembly or commissioning of the delivered goods by the customer also do not constitute a defect and do not entitle the customer to warranty claims.
7.3 The information contained in our brochures and catalogues as well as other advertising and public promotions, such as illustrations, drawings, weight and dimensional information, does not constitute an agreement on quality.
7.4 If there is a defect in a delivered, unused item, we shall, at our discretion, make a subsequent delivery of a defect-free item or repair the goods.
7.5 If the subsequent performance fails or is not carried out within a reasonable period of time set by us, the customer may withdraw from the contract or reduce the purchase price. Claims for damages by the customer due to defects in the goods shall only exist under the conditions stated in sec. 8 of these GTCs.
7.6 We shall only assume expenses in connection with the subsequent performance to the extent that they are reasonable in individual cases, in particular in relation to the purchase price of the goods. The costs of a subsequent performance (including the expenses required for this purpose within the meaning of § 439 (2) and (3) German Civil Code – BGB) are disproportionate within the meaning of § 439 (4) German Civil Code (BGB) if they exceed one and a half times the purchase price of the defective goods.
7.7 Claims under a right of recourse of the customer against us under § 445a (1) German Civil Code (BGB) are excluded, unless we are responsible for the defect of the goods which caused the expenses of the customer to be reimbursed by us, or the end user is a consumer. § 445a (2) German Civil Code (BGB) is excluded, unless the end buyer is a consumer.
7.8 The statutory obligations to examine and report defects in accordance with § 377 German Commercial Code (HGB) shall apply without restriction, subject to the provision that the customer must report visible defects without delay, at the latest within one week of delivery of the goods, whereby the timely dispatch of the written notice of defects shall be sufficient to meet the deadline. In any case, the customer must carry out the inspection before the goods are installed in another object.
7.9 The warranty period shall be 24 months, unless a case of sec. 7.10 or fraudulent intent exists; in such cases the statutory warranty periods shall apply. The warranty period of 24 months shall commence in the case of delivery ex works (EXW, Incoterms 2010) upon collection, if a different delivery condition has been agreed, upon delivery of the goods, if acceptance has been agreed, upon acceptance.
7.10 Notwithstanding sec. 7.9, the warranty period for used goods is 6 months.
7.11 If a claim is asserted against the customer due to a defect in the delivered goods, which was already present at the time of the transfer of risk, by a consumer or his customer due to a defect in the delivered goods, which was reported by a consumer as the end customer, the customer’s statutory rights of recourse against us in accordance with §§ 478, 479 German Civil Code (BGB), in particular the limitation period of 5 years calculated from the delivery of the defective goods, remain unaffected.
8.1 Claims for damages by the customer, regardless of the legal cause, as well as claims for reimbursement of futile expenses are excluded, unless the cause of the damage is based either on an intentional or grossly negligent breach of duty or on at least a negligent breach of a contractual obligation, the fulfilment of which makes the proper execution of the contract possible and on the fulfilment of which the customer relied and could rely and the culpable non-fulfilment of which endangers the achievement of the purpose of the contract (essential contractual obligation); in the latter case, the liability is limited to the amount of the damage foreseeable and typically occurring at the time of conclusion of the contract.
8.2 The limitation of liability as described in sec. 8.1 also applies to the personal liability of our employees, legal representatives and executive bodies as well as vicarious agents and other persons engaged by us in the performance of the contract.
8.3 The limitation of liability under the preceding sec. 8.1 and 8.2 do not apply to damage resulting from an injury of the life or limb, health or freedom nor in the case of liability under the German Product Liability Act (Produkthaftungsgesetz) nor in any case where we have, by way of exception, given a guarantee.
8.4 Notwithstanding sec. 8.1 to 8.3, we assume no liability for the culpability of our suppliers. This also applies if we pass on their operating instructions to our customer.
8.5 Insofar as the products supplied by us have an online function, this is intended exclusively for the installation of updates by us. We assume no liability for errors in the products and/or the supplied software that arise from the customer’s use of the online function.
8.6 Insofar as the products supplied by us enable the installation of third-party software (e.g. apps), we are not liable for the software provided by third parties. The same applies to errors that occur as a result of the installation of such third-party software on the products supplied by us, including the software installed thereon upon delivery. This exclusion shall not apply if compatibility with third-party software has been expressly agreed.
8.7 The customer is responsible for regular data backups. We recommend at least a monthly data backup.
9.1 Notwithstanding § 195 German Civil Code (BGB), the regular limitation period for claims of the customer, which is dependent on knowledge, is 24 months. The commencement of this period shall be governed by § 199 (1) German Civil Code (BGB).
9.2. Notwithstanding § 199 (3) No. 1 German Civil Code (BGB), the regular limitation period for claims of the customer, which is independent of knowledge, is 5 years commencing with the date on which the claim arises.
9.3 Sec. 9.1 and 9.2 shall not apply in the event of a wilful or grossly negligent breach of duty or a breach of material contractual obligations (see sec. 8.1) and in the cases mentioned in sec. 8.3. In these cases, the statutory limitation periods shall apply.
10. Extended and Prolonged Retention of Title
10.1 We retain title to the delivered goods (“goods subject to retention of title”) until our claims against the customer have been satisfied in full (“secured claims”) and all cheques and bills of exchange have been paid. Secured claims comprise any and all current and future claims from the business relationship with the customer, including any claims for payment of the balance in the context of a current account.
10.2 The customer is obliged to carefully keep the goods subject to retention of title, to maintain and repair them at the customer’s expense and to take out at the customer’s expense a new value insurance policy to the extent usually applicable in the case of a diligent businessman to insure the goods against loss and damage, and to provide us upon request with evidence demonstrating such insurance cover without undue delay by submission of a written confirmation by the insurer. The customer hereby assigns to us any future claims to insurance benefits and we accept this assignment.
10.3 The customer processes the goods subject to retention of title on our behalf. We become the owner of the new items. The processing, mixing and combination of the goods subject to retention of title with other goods is also deemed to be executed for us on our behalf. We become co-owners of, and share title to the new item so created, in the proportion of the invoice value of the goods subject to retention of title to the invoice value of the other goods. In case our goods are combined or mixed with a principal item which does not belong to us, the customer hereby assigns to us any future rights to the principal item and we hereby accept this assignment. New items and principal items in terms of this sec. 10.3 are also deemed to be subject to retention of title.
10.4 In the case of the resale of the goods subject to retention of title, the customer is obliged to safeguard our rights to an extent which is equivalent to the amount of the secured claims if and to the extent that this is appropriate in the regular course of business. This can be ensured by the customer making the transfer of title to the goods sold by the customer to his purchaser dependent on the full payment of such goods.
10.5 If the goods subject to retention of title are sold by the customer, he hereby assigns to us in advance his claims against his customers or third parties resulting from the resale, together with all security and subsidiary rights, including claims from bills of exchange and cheques, in the amount of the secured claims. We accept the assignment. If the goods subject to retention of title are sold together with other items at a total price, the assignment is limited to the proportionate amount of the customer’s invoice for the goods subject to retention of title that were also sold.
10.6 The customer is entitled to collect for us on the customer own behalf, in his own name and for his own account the claims assigned to us in accordance with sec. 10.2 and 10.5 if and to the extent that we do not revoke this authorization. This is without prejudice to our right to collect the assigned claims ourselves. However, we will not collect the assigned claims ourselves nor will we revoke the customer’s authorization to collect the claims if and for as long as the customer is not in default of payment and the customer’s financial situation has not substantially changed for the worse. In such a case, the customer is obliged to provide us with all information and documents, which are necessary to assert the assigned claims.
10.7 In the case of default or a substantial worsening of the customer’s financial situation or any other breach of duty by the customer other than a minor one, the customer agrees, subject to the provisions of § 107 (2) German Insolvency Act (InsO) to surrender the goods subject to retention of title. This obligation exists regardless of a withdrawal or the granting of a grace period. The customer already now permits us to enter the customer’s premises for the purpose of collecting the goods. We are entitled to resell any surrendered goods in the regular course of business and to deduct the costs of realization as well as our other claims against the customer from the obtained proceeds. The goods subject to retention of title are taken back by way of security only; this may only be deemed to constitute a withdrawal from the contract if this is explicitly declared in writing. When determining the remuneration for the use of, or fruits obtained from the goods in the case of a withdrawal, it is also necessary to take into account the reduction in value which has meanwhile occurred.
10.8 The customer is obliged to inform us without undue delay about any execution initiated by third parties which is levied upon the goods subject to retention of title or upon the claims assigned to us or on any other security, disclosing at the same time all information required for an intervention; this also applies to any other impediments of any kind whatsoever. If and to the extent that the third party is unable to reimburse us for the judicial or extra-judicial costs incurred by us in this connection, the customer will be liable for such costs.
10.9 We undertake to release the security to which we are entitled according to the preceding provisions at the customer’s request to the extent that the value, which can be realized from the security, exceeds 110%, or the estimated value of the goods subject to retention of title exceeds 150% of the claims to be secured. It is our responsibility to choose the goods which have to be released. The realizable value is the value, which can be obtained from the realization of the goods subject to retention of title at the time of our decision on the request for release in the case of a (hypothetical) insolvency of the customer. The estimated value is the market price of the goods subject to retention of title at the aforesaid point in time.
10.10 If and to the extent that the retention of title should be ineffective according to the foreign law of the country where the goods subject to retention of title are located, the customer will be obliged to provide equivalent security upon our request. If the customer fails to comply with such request, we may claim immediate payment of all outstanding invoices.
Our customer undertakes to comply with the respective legal regulations for dealing with employees, environmental protection and occupational safety and to observe the principles of the United Nations Global Compact.
12.1 “Confidential information” in the sense of the following confidentiality clause is all information (including data, records, documents, drawings, samples, technical components and know-how) which is/was made accessible to the organs, employees, consultants of the customer or other third parties working for him within the scope of the contract and the negotiations for the contract, in particular about our company, our suppliers, our production processes, our price calculation, etc., and which is marked as confidential or which by its nature requires confidentiality. Whether and on which medium the Confidential Information is embodied is irrelevant; in particular, oral information is also included.
12.2 Our customer is obliged to treat the Confidential Information as strictly confidential and not to pass it on or make it accessible to third parties without our written consent. Our customer shall take suitable precautions to protect the Confidential Information, but at least those precautions with which he protects particularly sensitive information about his own company.
12.3 Our customer is not entitled to use Confidential Information disclosed by us for any other purpose than for the purpose of fulfilling the respective contract. In particular, our customer is not entitled to reproduce, duplicate, open or disassemble (reverse engineering) samples or other corresponding information received.
12.4 The obligations to maintain secrecy pursuant to sec. 12.1 and 12.2 shall not apply to such information for which our customer can prove that
• we have given our prior written consent to the transfer or use by our customer in the specific individual case;
• they were public knowledge before the conclusion of this confidentiality agreement;
• our customer has obtained them from a third party prior to the conclusion of this confidentiality agreement or has obtained them from a third party thereafter without breach of this confidentiality agreement, provided that the third party has lawfully obtained possession of the Confidential Information and does not breach a confidentiality obligation binding on it by passing them on; or
• is obliged to disclose confidential information by law or by the rules and regulations of an exchange or by an enforceable order of a competent court or authority.
13. Place of Performance, Place of Jurisdiction, Applicable Law
13.1 The place of performance is our business domicile in Munich, Germany.
13.2 For both parties, the place of jurisdiction for any and all disputes arising from commercial transactions concluded with merchants who have been entered in the commercial register and legal persons under public law is Munich, Germany (§ 38 ZPO – German Code of Civil Procedure). This also applies to any special litigation for the decision on claims arising from a bill of exchange or a cheque. However, we are also entitled to sue our customer at the place of general jurisdiction applicable to the customer. For proceedings that are exclusively assigned to the local courts, the local court of Munich is responsible.
13.3 The law of the Federal Republic of Germany shall apply, excluding all references to other legal systems and international agreements. The Convention of the Agreed Nations of 11 April 1980 on Contracts for the International Sale of Goods (CISG, “Vienna Sales Convention”) is excluded.
14. Severability Clause
If individual provisions of these GTC or the delivery transaction are or become invalid in whole or in part, the validity of the remaining provisions or other parts of such clauses shall not be affected. The invalid clause shall be replaced by a provision which corresponds as closely as possible to the objective of this clause and is effective.