General Terms and Conditions

 

I. Scope of appli­ca­tion

1. our fol­lo­wing terms and con­di­ti­ons of deli­very and pay­ment apply to busi­ness tran­sac­tions with per­sons acting in the exer­cise of their com­mer­cial or inde­pen­dent pro­fes­sio­nal acti­vity (entre­pre­neurs).
2. our deli­veries, ser­vices and offers are made exclu­si­vely on the basis of the fol­lo­wing terms and con­di­ti­ons. Any con­flic­ting or devia­ting terms and con­di­ti­ons of the cus­to­mer are her­eby expressly rejec­ted. Our terms and con­di­ti­ons shall also apply if we deli­ver wit­hout reser­va­tion in the know­ledge of con­flic­ting or devia­ting terms and con­di­ti­ons of the cus­to­mer. Devia­ti­ons from our terms and con­di­ti­ons require our express writ­ten con­sent.
3. Our terms and con­di­ti­ons shall also apply to future deli­veries and ser­vices within the frame­work of a per­ma­nent busi­ness rela­ti­onship, unless we con­firm them on devia­ting terms.

II Offers and con­clu­sion of con­tract, writ­ten form

1 Our offers are sub­ject to change and non-bin­ding, unless expressly sta­ted other­wise. The docu­ments belon­ging to the offers such as bro­chu­res, illus­tra­ti­ons, cost esti­ma­tes, dra­wings and other docu­ments shall remain our pro­perty and may not be used, repro­du­ced or made acces­si­ble to third par­ties wit­hout our con­sent. They must be retur­ned to us imme­dia­tely if the order is not pla­ced.
2. A con­tract with our cus­to­mers is only con­cluded when we accept the cus­to­mer’s order in wri­ting by issuing an order con­fir­ma­tion or by car­ry­ing out the deli­very. The accep­tance period for us is 4 (four) weeks from receipt of the order.
3. Gua­ran­tees of qua­lity or dura­bi­lity, agree­ments on qua­lity or decla­ra­ti­ons on the use of the deli­very item as well as col­la­te­ral agree­ments made before our order con­fir­ma­tion are only valid in case of doubt if we con­firm them in wri­ting. Agree­ments and infor­ma­tion in our offers regar­ding the qua­lity or use of the deli­very item shall take pre­ce­dence over the infor­ma­tion con­tai­ned in our bro­chu­res, dra­wings, descrip­ti­ons, price lists and other docu­ments. Infor­ma­tion on phy­si­cal pro­per­ties, in par­ti­cu­lar on qua­lity, thic­k­ness or dimen­si­ons, are only to be unders­tood as sug­ges­ti­ons, for the cor­rect­ness of which we assume no lia­bi­lity.

III Pri­ces

1. unless other­wise agreed, our pri­ces shall apply ex our warehouse exclu­ding pack­a­ging and trans­port, exclu­ding costs for instal­la­tion, assem­bly and unloa­ding, pro­vi­ded that the access roads are pas­sa­ble.
2. our pri­ces are exclu­sive of value-added tax; this shall be shown sepa­ra­tely on the invoice at the sta­tu­tory rate on the day of invoi­cing. We reserve the right to increase our pri­ces to the ext­ent that we gene­rally increase our pri­ces.

IV. Terms of pay­ment

1. a pay­ment shall only be dee­med to have been made when we can finally dis­pose of the amount. In the case of pay­ments by check, pay­ment shall only be dee­med effec­ted when the amount has been finally cre­di­ted.
2. We are entit­led, despite any pro­vi­si­ons to the con­trary, to off­set pay­ments by the cus­to­mer first against the cus­to­mer’s older debts. If costs and inte­rest have alre­ady been incur­red, we are entit­led to off­set the pay­ment against the costs, then against inte­rest and finally against the prin­ci­pal claim.
3. We are not obli­ged to accept checks. Any accep­tance shall always be on account of pay­ment only. Bank, dis­count and coll­ec­tion char­ges shall be borne by the cus­to­mer and are due imme­dia­tely after sett­le­ment. We assume no lia­bi­lity for timely pre­sen­ta­tion or pro­test­ing.
4. If the cus­to­mer does not meet his pay­ment obli­ga­ti­ons, in par­ti­cu­lar if he does not cash a check or stops his pay­ments or is in arre­ars with undis­pu­ted claims for more than 14 days despite a remin­der or if enforce­ment is unsuc­cessful against him, we are entit­led to make the entire remai­ning debt due, even if we have accepted checks. In this case, we are also entit­led to demand advance pay­ments or secu­rity depo­sits for all con­tracts and to with­draw from these con­tracts after a reasonable grace period has expi­red wit­hout result or to demand com­pen­sa­tion ins­tead of per­for­mance.
5. The cus­to­mer is only per­mit­ted to off­set such coun­ter­claims which are not dis­pu­ted by us, are reco­gni­zed or have been legally estab­lished. The cus­to­mer shall also have no right of reten­tion due to dis­pu­ted coun­ter­claims.

V. Reten­tion of title

1. all goods deli­vered by us shall remain our pro­perty until all lia­bi­li­ties ari­sing from the busi­ness rela­ti­onship, inclu­ding future claims, have been sett­led in full. In the case of pay­ment by check, our claim is only ful­fil­led when the cor­re­spon­ding amount has been finally cre­di­ted to us and no fur­ther recourse claims against us can be con­side­red.
2. The cus­to­mer is obli­ged to treat the goods deli­vered by us with care. The cus­to­mer her­eby assigns to us any claims against the dama­ging party to which he is entit­led in the event of damage, inso­far as they relate to our owner­ship or co-owner­ship.
3. The cus­to­mer may neither assign the goods in our owner­ship as secu­rity nor pledge them wit­hout our express writ­ten con­sent. The cus­to­mer is obli­ged to inform us imme­dia­tely in wri­ting of any sei­zure of the goods by third par­ties and of any other impair­ment of our rights and in this case to inform the third party or enforce­ment offi­cer imme­dia­tely of our rights.
4. The cus­to­mer is entit­led, pro­vi­ded he is not in default with his pay­ment obli­ga­ti­ons to us, to resell, install or pro­cess the goods deli­vered by us in the ordi­nary course of busi­ness. The pro­ces­sing or trans­for­ma­tion of the goods by the cus­to­mer shall always be car­ried out on our behalf. If the goods are pro­ces­sed with other items not belon­ging to us, we shall acquire co-owner­ship of the new item in the ratio of the value of the goods to the other pro­ces­sed items at the time of pro­ces­sing. If the goods sup­plied by us are inse­pa­ra­bly mixed with other items not belon­ging to us, we shall acquire co-owner­ship of the new item in the ratio of the value of the goods to the other mixed items at the time of mixing. If the mixing takes place in such a way that the cus­to­mer’s item is to be regarded as the main item, it is agreed that the cus­to­mer shall trans­fer co-owner­ship to us on a pro rata basis. The cus­to­mer shall keep the resul­ting sole owner­ship or co-owner­ship for us.
5. The cus­to­mer her­eby assigns to us all claims against its cus­to­mers or third par­ties ari­sing from the resale or instal­la­tion of the goods in our owner­ship or co-owner­ship, irre­spec­tive of whe­ther the purcha­sed item has been resold wit­hout or after pro­ces­sing. In the event of the sale of goods co-owned by us, a part of the claims cor­re­spon­ding to our co-owner­ship share shall be assi­gned to us. The cus­to­mer shall be aut­ho­ri­zed to coll­ect the claims assi­gned to us in the ordi­nary course of busi­ness; he shall not be per­mit­ted to dis­pose of these claims in any other way, in par­ti­cu­lar assign­ments or pled­ges. Our aut­ho­riza­tion to coll­ect the claims our­sel­ves shall remain unaf­fec­ted by this. Howe­ver, we shall not coll­ect the claims as long as the cus­to­mer meets his pay­ment obli­ga­ti­ons to us. At our request, the cus­to­mer is obli­ged to inform us of the assi­gned claims and their deb­tors, to pro­vide all infor­ma­tion neces­sary for coll­ec­tion, to hand over the rele­vant docu­ments and to inform the deb­tors of the assign­ment.
6. In the event of breach of con­tract by the cus­to­mer, in par­ti­cu­lar default of pay­ment, we are entit­led, but not obli­ged, to take back the deli­vered goods. Taking back the goods does not con­sti­tute a with­dra­wal from the con­tract unless we expressly declare this in wri­ting. We shall charge a lump sum of 10% of the net deli­very value plus VAT for taking back the goods. The cus­to­mer reser­ves the right to prove a lower expense, we reserve the right to prove a hig­her expense.
7. We under­take to release the secu­ri­ties to which we are entit­led inso­far as their rea­lizable value exceeds the claim to be secu­red by more than 20%. We shall be respon­si­ble for sel­ec­ting the secu­ri­ties to be released.

VI Deli­very time

1. unless other­wise agreed, the deli­very times sta­ted by us (i.e. deli­very peri­ods and deli­very dates) are only appro­xi­mate. They shall be adhe­red to as far as pos­si­ble. 2. deli­very peri­ods shall com­mence on the date of the order con­fir­ma­tion, but not before all per­for­mance requi­re­ments to be ful­fil­led by the cus­to­mer have been met, in par­ti­cu­lar not before the docu­ments, appr­ovals and releases to be pro­cu­red by the cus­to­mer have been pro­vi­ded and not before receipt of pay­ment, which is due before deli­very as agreed. 3. the deli­very dead­lines shall be dee­med to have been met if the deli­very item has left our warehouse or rea­di­ness for dis­patch has been noti­fied by the time they expire. 4. com­pli­ance with our deli­very obli­ga­tion pre­sup­po­ses the timely and pro­per
ful­fill­ment of the cus­to­mer’s obli­ga­ti­ons. 5. dis­rup­ti­ons in busi­ness ope­ra­ti­ons for which we are not respon­si­ble, in par­ti­cu­lar due to labor dis­pu­tes, cases of force majeure, unfo­re­seeable ope­ra­tio­nal dis­rup­ti­ons, offi­cial inter­ven­ti­ons, govern­ment import and export rest­ric­tions, shorta­ges of raw mate­ri­als requi­red by us, dis­rup­ti­ons in energy sup­ply, etc., both for us and for our sup­pli­ers, shall extend the deli­very time accor­din­gly, inso­far as such obs­ta­cles demons­tra­bly have a con­sidera­ble influence on the com­ple­tion or deli­very of the object of purchase. We shall also not be respon­si­ble for the afo­re­men­tio­ned cir­cum­s­tances if they arise during an alre­ady exis­ting delay. In important cases, the cus­to­mer shall be infor­med as soon as pos­si­ble of the begin­ning and end of such hin­dran­ces. 6. if we exceed the deli­very time for reasons for which we are respon­si­ble, we shall be in default of deli­very if the cus­to­mer requests us in wri­ting to deli­ver within a period of at least 3 (three) weeks after expiry of the deli­very period and we allow this period to elapse. In this case, the cus­to­mer shall be entit­led to demand a lump-sum com­pen­sa­tion for delay amoun­ting to 0.5% of the deli­very value for each full week of delay, up to a maxi­mum of 10% of the deli­very value. Fur­ther claims by the cus­to­mer are excluded unless one of the excep­ti­ons accor­ding to Sec­tion X (2) and (3) applies or a spe­ci­fic deli­very dead­line has been agreed as a bin­ding pri­mary obli­ga­tion in the indi­vi­dual case.
7. If a cus­to­mer sets us a reasonable dead­line for per­for­mance or sub­se­quent per­for­mance after we have alre­ady defaul­ted, the cus­to­mer shall be entit­led to with­draw from the con­tract after this dead­line has expi­red wit­hout result if we are respon­si­ble for this. The set­ting of a dead­line is dis­pensable under the legal requi­re­ments of § 323 para. 2 BGB.
8. The cus­to­mer is obli­ged, at our request, to declare within a reasonable period of time whe­ther he will with­draw from the con­tract or demand com­pen­sa­tion ins­tead of per­for­mance or insist on per­for­mance.
9. If dis­rup­ti­ons of the kind descri­bed in para­graph (5) are not only of a tem­po­rary nature, but make our per­for­mance per­ma­nently impos­si­ble, we are entit­led to with­draw from the con­tract in whole or in part. The cus­to­mer shall not be entit­led to claim dama­ges due to such a with­dra­wal.

VII Trans­fer of risk and ship­ment

1. the risk of having to pay the price despite loss or damage shall pass to the cus­to­mer as soon as the ship­ment has been han­ded over to the per­son car­ry­ing out the trans­port or has left our warehouse for the pur­pose of ship­ment, even if we have excep­tio­nally assu­med fur­ther ser­vices, e.g. ship­ping costs, deli­very or instal­la­tion. The same shall apply to par­tial deli­veries.
2. If dis­patch is delayed due to cir­cum­s­tances for which the cus­to­mer is respon­si­ble, the risk shall pass to the cus­to­mer upon noti­fi­ca­tion of rea­di­ness for dis­patch; howe­ver, we shall be obli­ged to take out the insu­rance reques­ted by the cus­to­mer at the cus­to­mer’s request and expense.
3. At the cus­to­mer’s request, we shall take out trans­port insu­rance at the cus­to­mer’s expense.

VIII Par­tial deli­veries

1. we are entit­led to make par­tial deli­veries unless the cus­to­mer has expressly poin­ted out to us at the time of con­clu­sion of the con­tract that he has no inte­rest in par­tial deli­veries.
2. each par­tial deli­very shall be invoi­ced sepa­ra­tely by us and shall be paid for by the cus­to­mer in accordance with our terms and con­di­ti­ons.

IX. Rights of the cus­to­mer in the event of defects, lia­bi­lity

1. the cus­to­mer’s rights in the event of defects shall be gover­ned exclu­si­vely by the fol­lo­wing pro­vi­si­ons. Any fur­ther claims of the cus­to­mer are excluded.
2. The cus­to­mer is respon­si­ble for ensu­ring that dra­wings and other infor­ma­tion pro­vi­ded by him are sui­ta­ble and dimen­sio­nally accu­rate, cor­re­spond to the actual con­di­ti­ons and do not inf­ringe the pro­perty rights of third par­ties. If this is not the case, the cus­to­mer shall reim­burse us for any addi­tio­nal costs incur­red as a result. If there are excep­tio­nal cli­ma­tic con­di­ti­ons at the instal­la­tion site, the cus­to­mer must inform us of this when pla­cing the order. We accept no lia­bi­lity for damage and defects resul­ting from incor­rect or incom­plete spe­ci­fi­ca­ti­ons by the cus­to­mer.
3. We accept no lia­bi­lity for damage and defects resul­ting from nor­mal or exces­sive wear and tear, incor­rect or negli­gent hand­ling by the cus­to­mer or third par­ties, incor­rect assem­bly, unsui­ta­ble ope­ra­ting mate­ri­als, repla­ce­ment mate­ri­als, defec­tive con­s­truc­tion work, unsui­ta­ble buil­ding ground, wea­ther con­di­ti­ons, ther­mal, che­mi­cal, elec­tro­che­mi­cal or elec­tri­cal influen­ces, unless these cir­cum­s­tances are due to our fault. Only insi­gni­fi­cant devia­ti­ons from the qua­lity owed, in par­ti­cu­lar cus­to­mary quan­tity and qua­lity tole­ran­ces, do not con­sti­tute a mate­rial defect.
4. The cus­to­mer must give writ­ten notice of obvious defects within 2 (two) weeks of deli­very. For mer­chants, the sta­tu­tory pro­vi­si­ons of § 377 HGB (Ger­man Com­mer­cial Code) and the resul­ting obli­ga­ti­ons to inspect and give notice of defects shall also apply. These dead­lines are pre­clu­sive dead­lines. (5) In the event of jus­ti­fied mate­rial defects that have been duly noti­fied in good time and whose cause alre­ady exis­ted at the time of the trans­fer of risk, we shall, at our dis­cre­tion, pro­vide sub­se­quent per­for­mance by reme­dy­ing the defect or deli­ve­ring a defect-free item in return for the return of the defec­tive deli­very item. 6. we only war­rant that the deli­very item is free from indus­trial pro­perty rights and copy­rights of third par­ties (her­ein­af­ter: pro­perty rights) in the coun­try of the place of deli­very; a defect shall not exist if and to the ext­ent that the cus­to­mer is respon­si­ble for the inf­rin­ge­ment of pro­perty rights or the cus­to­mer’s inf­rin­ge­ment of pro­perty rights is cau­sed by an appli­ca­tion not fore­seeable by us or by the fact that the deli­very item is modi­fied by the cus­to­mer or used tog­e­ther with pro­ducts not sup­plied by us. If a third party rai­ses jus­ti­fied claims against the cus­to­mer due to the inf­rin­ge­ment of pro­perty rights by deli­veries made by us and used in accordance with the con­tract, the cus­to­mer must inform us of this imme­dia­tely in wri­ting and coor­di­nate his defense mea­su­res with us.
7. In the event of a jus­ti­fied defect in pro­perty rights, we shall, at our dis­cre­tion, eit­her obtain a right of use or modify our per­for­mance in such a way that the pro­perty right is not inf­rin­ged or replace it (sub­se­quent per­for­mance). The same shall apply in the case of other defects of title.
8. If we refuse sub­se­quent per­for­mance or if this fails or is unre­asonable for the cus­to­mer, the cus­to­mer may with­draw from the con­tract or reduce the purchase price.
9. The cus­to­mer may assert claims for dama­ges within the scope of the sta­tu­tory pro­vi­si­ons if a defect is frau­du­lently con­cea­led or if we have excep­tio­nally assu­med a gua­ran­tee of qua­lity.

Fur­ther claims for dama­ges due to defects of the deli­very item are excluded unless one of the excep­ti­ons accor­ding to Sec­tion X (2) and (3) applies.
10. Claims for defects of the cus­to­mer shall become sta­tute-bar­red after 12 months from the trans­fer of risk, unless we are lia­ble for intent and unless the deli­very item has been used for a buil­ding in accordance with its nor­mal use and has cau­sed its defec­ti­ve­ness. This limi­ta­tion period shall apply to any claims, in par­ti­cu­lar also claims for com­pen­sa­tion for con­se­quen­tial damage cau­sed by defects, which are rela­ted to any defects.
11. Claims of the cus­to­mer for expen­ses incur­red for the pur­pose of sub­se­quent per­for­mance, in par­ti­cu­lar trans­port, tra­vel, labor and mate­rial costs, are excluded if the expen­ses increase because the deli­very item has sub­se­quently been moved to a loca­tion other than the cus­to­mer’s branch office, unless the relo­ca­tion cor­re­sponds to the inten­ded use.

X. Lia­bi­lity, com­pen­sa­tion for dama­ges

1. unless other­wise sta­ted in these terms and con­di­ti­ons of deli­very and pay­ment, claims for dama­ges and reim­bur­se­ment of expen­ses of the cus­to­mer of any kind, regard­less of the legal grounds, (her­ein­af­ter coll­ec­tively refer­red to as “claims for dama­ges”) are excluded. We are the­r­e­fore not lia­ble in par­ti­cu­lar for loss of pro­fit or other finan­cial los­ses of the cus­to­mer.
2. The exemp­tion from lia­bi­lity in accordance with para­graph 1 does not apply to dama­ges resul­ting from injury to life, body or health, which are based on a breach of duty for which we are at least negli­gent and for which we are lia­ble under the Pro­duct Lia­bi­lity Act or which are based on a breach of duty by us or our legal repre­sen­ta­ti­ves or vica­rious agents that is at least grossly negli­gent.
3.Furthermore, the exemp­tion from lia­bi­lity shall not apply to dama­ges which are based on a breach of a car­di­nal con­trac­tual obli­ga­tion for which we are respon­si­ble and which is at least negli­gent, inso­far as the achie­ve­ment of the pur­pose of the con­tract is jeo­par­di­zed by the breach. In the case of defects, such an end­an­ger­ment shall only exist in the case of signi­fi­cant defects and at the ear­liest when the requi­re­ments of Sec­tion IX para. IX para. (8) are met. In the event of a breach of a car­di­nal con­trac­tual obli­ga­tion, our lia­bi­lity shall be limi­ted to the fore­seeable damage typi­cal for the con­tract, unless there is intent or gross negli­gence or the damage results from at least negli­gent injury to life, limb or health.
4. Inso­far as our lia­bi­lity is excluded or limi­ted, this shall also apply to the per­so­nal lia­bi­lity of our employees, workers, staff, repre­sen­ta­ti­ves and vica­rious agents.

XI. Default of accep­tance

1. if the cus­to­mer refu­ses accep­tance after expiry of a reasonable grace period of at least 4 (four) weeks set for him or expressly decla­res before­hand that he does not wish to accept, we may with­draw from the con­tract and demand com­pen­sa­tion for dama­ges ins­tead of per­for­mance in the amount of 15% of the con­tract sum; the cus­to­mer reser­ves the right to prove lower dama­ges, we reserve the right to prove hig­her dama­ges.
2In the event of a delay in accep­tance of more than 2 (two) weeks, we shall be entit­led to demand a lump-sum com­pen­sa­tion for delay of 0.25% of the deli­very value for each full week of delay, up to a maxi­mum of 10% of the deli­very value. The cus­to­mer reser­ves the right to pro­vide evi­dence of lower dama­ges and we reserve the right to pro­vide evi­dence of hig­her dama­ges.

XII. Appli­ca­ble law, place of per­for­mance, place of juris­dic­tion

1. these terms and con­di­ti­ons and the entire legal rela­ti­onship bet­ween us and the cus­to­mer shall be gover­ned exclu­si­vely by Ger­man law – even in the case of for­eign tran­sac­tions. The appli­ca­bi­lity of for­eign law is excluded, as is the appli­ca­tion of the UN Con­ven­tion on Con­tracts for the Inter­na­tio­nal Sale of Goods (CISG).
2. In busi­ness tran­sac­tions with mer­chants, legal enti­ties under public law or spe­cial funds under public law, the place of juris­dic­tion for all dis­pu­tes, inclu­ding actions on bills of exch­ange and che­ques, shall be Reut­lin­gen. This place of juris­dic­tion shall also apply if the cus­to­mer has no gene­ral place of juris­dic­tion in Ger­many. Howe­ver, we are also entit­led to sue the cus­to­mer at the court of his place of busi­ness.
3. Unless other­wise sta­ted in the order con­fir­ma­tion, Reut­lin­gen is the place of per­for­mance.

XIII Final pro­vi­si­ons, data pro­tec­tion

1. should one or more pro­vi­si­ons of these terms and con­di­ti­ons of deli­very and pay­ment be or become inva­lid, the remai­ning pro­vi­si­ons shall nevert­hel­ess remain in full force and effect. The inva­lid pro­vi­sion shall be repla­ced by a valid pro­vi­sion that achie­ves the eco­no­mic pur­pose of the inva­lid pro­vi­sion as far as pos­si­ble.
2. Our terms and con­di­ti­ons shall apply until the busi­ness rela­ti­onship has been fully com­ple­ted.
3. We would like to point out that we store the cus­to­mer’s data within the scope of the pur­pose of the con­trac­tual rela­ti­onship. You can find our infor­ma­tion on data pro­ces­sing at https://www.muenzinger.eu/agb Sta­tus June 2018