General sales conditions

§ 1 Scope of application, form

(1) These general sales conditions (GSC) apply to all of our business relationships with our customers ("buyers"). The GSC apply only if the buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a public and legal special asset.

(2) The GSC shall in particular apply to contracts concerning the sale and/or the delivery of movable objects ("goods"), irrespective of whether we produce the goods ourselves or purchase these from components suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GSC apply in their respective version as per the time of order by the buyer, or in any case in the form last communicated to them in writing, as framework agreement for future contracts concerning the sale of goods without us having to refer to these again in each individual case.

(3) Our GSC shall apply exclusively. Differing, conflicting or supplementary General Terms and Conditions of the buyer shall only then and insofar become a part of the contract to the extent that we have explicitly approved their validity. This approval requirement shall apply in any case, for example also if, with the knowledge of the General Business Terms of the buyer, we carry out the delivery to him without reservation.

(4) Individual agreements reached with the buyer in individual cases (including side agreements, additions and amendments) shall in all cases have precedence over these GSC. A written contract or our written confirmation is decisive for the content of such agreements, subject to proof of the contrary.

(5) Legally significant declarations and notices of the buyer in relation to the contract (deadlines, notifications of defects, declarations on rescission or reduction) shall be given in written form (e.g. letter, e-mail, telefax). Legal formalities and additional verifications, especially in case of any doubt about the legitimacy of the declaring party remain unaffected.

(6) References to the validity of statutory regulations shall only have clarifying significance. Therefore, the statutory regulations shall also apply without such a clarification insofar as they are not directly changed or are explicitly excluded in these GSC.

§ 2 Conclusion of contract

(1) Our offers are without obligation and non-binding This shall also apply if we have handed over catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents – also in an electronic form – to the buyer, to which we reserve property rights and copyrights.

(2) The order of the goods by the buyer is deemed as a binding contractual offer. Insofar as not otherwise derived from the order we are entitled to accept this contractual offer within 14 days after its receipt by us.

(3) The acceptance can either be declared in writing (e.g. by order confirmation) or by delivery of the goods to the buyer.

§ 3 Delivery deadline and delay in delivery

(1) The delivery deadline shall be agreed individually or stated by us with the acceptance of the order.

(2) Insofar as we cannot observe binding delivery dates for reasons for which we are not responsible (non-availability of the service) we shall inform the buyer hereof immediately and at the same time inform about the expected new delivery deadline. If the service is not available within the new delivery date either we shall be entitled to cancel the contract in full or in part; we will reimburse an already provided contribution of the buyer immediately. Deemed as case of non-availability of the service within this meaning is in particular the late self-delivery by our suppliers if we have concluded a congruent hedging transaction, the fault falls neither on us nor our suppliers or we are not obliged to procurement in any individual case.

(3) The occurrence of our delay in delivery is determined according to the statutory regulations. In any case however a reminder by the buyer is necessary.

(4) The rights of the buyer to cancellation and termination according to § 8 of the GSC and our statutory rights, especially in case exclusion of the service obligation (e.g. impossibility of service and/or subsequent performance or if these are deemed unreasonable) remain unaffected.

§ 4 Delivery, passing of risk, acceptance, delay in acceptance

(1) The delivery is carried out ex warehouse where the place of performance is also respectively located. At the request and costs of the buyer the goods shall be sent to another place of destination (contract of sale involving the carriage of goods). Insofar as not otherwise agreed we are entitled to determine the type of shipment (in particular transport company, shipment route, packaging) ourselves.

(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer by no later than when the goods are handed over. With a contract of sale involving the carriage of goods the risk of accidental loss and accidental deterioration of the goods and the risk of delay shall however pass with the delivery of the goods to the carrier, the freight forwarder or the other person or institution determined to carry out the shipment already. Insofar as an acceptance has been agreed this shall be decisive for the passing of risk. Incidentally, the statutory regulations of the law governing contracts for work and services shall also apply accordingly to an agreed acceptance. It is deemed equivalent to the handover or acceptance if the buyer is in default with the acceptance.

(3) If the buyer is in default of acceptance, if they fail to provide an act of assistance or if our delivery is delayed for other reasons for which the buyer is responsible then we are entitled to request compensation for the thus arising damages including additional expenses (e.g. storage costs). For this, we shall charge a flat rate compensation amounting to 20.00 EUR per calendar day, beginning with the delivery date or – in the absence of a delivery date – with the notification that the goods are ready for shipment.

The proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; the flat rate is however to be offset against further monetary claims. The buyer shall reserve the right to prove that we did not suffer any damages at all or only substantially less damages than the aforementioned flat rate.

(4) The manufacturer shall reserve the right to deliver quantities that are higher or lower by up to 5% than the total order amount. This deviation is regarded as according to contract and shall not justify a complaint or reduction of price. The actually ordered quantity shall be invoiced.

§ 5 Price, terms of payment

(1) Insofar as not otherwise agreed in an individual case our actual prices which respectively apply at the time of the delivery shall apply ex warehouse plus the legal rate of value added tax.

(2) In case of carriage of goods (§ 4 sec. 1), the buyer shall bear the transport costs ex warehouse and if requested by the buyer the cost of insurance if the goods.

(3) The purchase price is due and payable within 30 days from invoicing and delivery respectively acceptance of the goods. However, we shall be entitled to conduct a delivery as a whole or in part against pre-payment at any time, which also shall apply in the context of a current business relation. An appropriate declaration of reservation shall be declared with the confirmation of the order at the latest.

(4) The buyer shall be in default with the expiry of the aforementioned payment deadline. Interest is to be paid on the purchase price at the respective applicable interest rate for default during the default. We shall reserve the right to assert further damages on default. Our claim for the commercial maturity interest (§ 353 HGB) against merchants remains unaffected.

(5) The buyer is only entitled to rights to offset or retention to the extent that their entitlement has been determined legally or is undisputed. In case of defects to the delivery the rights of the buyer, especially in regards to § 7 sec. 6 sentence 2 of this GSC shall remain unaffected.

(6) If there are indications after conclusion of the contract that our entitlement to the purchase price is at risk through insufficient ability of the buyer to pay (e.g. by an application for opening of insolvency proceedings), then according to the statutory regulations we are entitled to refuse service and – if applicable after setting a deadline – to cancel the contract (§ 321 BGB). In case of contracts concerning the production of unreasonable objects (individual productions) we shall be able to declare the cancellation immediately; the statutory regulations concerning the lack of necessity to set a deadline remain unaffected.

(7) For small orders (net value of goods below € 50.00), we will invoice a handling fee of € 25,00.

§ 6 Retention of title

(1) We shall reserve the right to the property of the sold goods until the full payment of all of our current and future claims from the purchase contract and a current business relationship (secured claims).

(2) The goods subject to reservation of title may neither be pledged to third parties, nor assigned as collateral before the full payment of the secured claims. The buyer must inform us immediately in writing if an application for opening of insolvency proceedings has been made or insofar as there are any accesses of third parties (e.g. seizures) to the goods which belong to us.

(3) In case of conduct of the buyer which is in breach of the contract, in particular non-payment of the due purchase price, we shall be entitled to cancel the contract according to the statutory regulations and/or to request that the goods are handed over owing to the retention of title. The request for handing over does not at the same time include the declaration of the cancellation; we merely request that the goods are handed over and reserve the right to cancellation. If the buyer does not pay the due purchase price, we may however only reserve these rights if we have unsuccessfully set the buyer a reasonable deadline for payment in advance or if the setting of such a period is superfluous according to the statutory regulations.

(4) The buyer is, until revoked according to section (c), authorised to resell and/or to process the goods which are subject to reservation of title in proper business transactions. In this case the following provisions shall apply in addition.

(a) The reservation of title covers the products which are produced by processing, mixing or combination of our goods at their full value, whereby we are deemed the manufacturer. If the ownership right of third parties continues to exist with a processing, mixing or combination with goods of third parties then we shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. Incidentally the same shall apply to the produced product as to the goods delivered under reservation of title.

(b) The buyer hereby now already assigns the claims against third parties, which are established from the resale of the goods or product in total or in the amount of our possible co-ownership share, to us as collateral according to the aforementioned paragraph. We hereby accept the assignment. The obligations of the buyer stated in sec. 2 shall also apply in view of the assigned claims.

(c) The buyer shall remain authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the buyer meets their payment obligations towards us, there is no other deficiency to their ability to pay and we do not claim the retention of title by exercising one of the rights according to section 3. However, if this is the case we may request that the buyer informs us of the assigned claims and its debtors, provides all information which is necessary for the collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, we shall be entitled to revoke the authority of the buyer to further sell or process the goods under retention of title in this case.

(d) If the realisable value of the collateral items exceeds our claims by more than 10%, we shall upon request of the buyer release collateral items at our choice.

§ 7 Claims for defects of the buyer

(1) The statutory regulations shall apply to the rights of the buyer in case of defects of quality and title (including false and shortfall in delivery as well as improper assembly or faulty assembly instructions) insofar as not otherwise determined below. The special provisions on final delivery of unprocessed goods to a consumer shall remain unaffected at any time, even if they have further processed them (supplier recourse §§ 478 BGB). Claims arising from supplier recourses are excluded if the defective goods have been processed further by the buyer or any other entrepreneur, e.g. by installing it into another product.

(2) The primary basis of our liability for defects shall be the agreement made concerning the quality of the goods. All product descriptions and manufacturer specifications serve as an agreement about the quality structure of the products which are the object of the individual contract or have been made public by us (in particular in catalogues or on our homepage) at the moment of conclusion of contract.

(3) In the absence of any agreed specification of the goods, the presence or absence of a defect shall be determined based on the statutory regulations (§ 434 sec. 1 sentence 2 and 3 BGB). We shall not be held liable, however, for any public statements by the manufacturer or other third parties (e.g. advertising messages) that the buyer has stated to us as being relevant for the purchase decision.

(4) We shall fundamentally not be liable for defects that the buyer knows or grossly negligently does not know at the moment of conclusion of contract (§ 442 BGB). Furthermore, the buyer’s claims require that they have fulfilled their legal duty to examine the goods and to give notice of defects (§§ 377, 381 HGB). For building materials and other goods that are meant for installation or other further processing, an inspection has to occur in any case immediately before processing. Should a fault become apparent at delivery, this inspection or at a later time then this has to be reported to us immediately in writing. In any case, obvious faults have to be reported in writing within five working days from delivery and not obvious faults that become apparent during inspection within the same time frame. If the buyer fails to carry out the proper inspection and/or report of defects, our liability for the defect which was not reported resp. not reported in time or properly is excluded in accordance with the statutory regulations.

(5) If the delivered object is faulty we can initially choose whether we shall provide subsequent performance by remedying the defect (subsequent improvement) or by delivery of a faultless object (substitute delivery). Our right to refuse the chosen type of subsequent performance under the statutory pre-requisites remains unaffected.

(6) We are entitled to make the owed subsequent performance dependent on the fact that the buyer pays the due purchase price. The buyer is however entitled to retain a part of the purchase price which is reasonable to the ratio to the defect.

(7) The buyer must give us the time and opportunity which are necessary for the owed subsequent performance, in particular to hand over the goods for which a complaint was made for purposes of inspection. In the event of the substitute delivery the buyer must return the faulty object to us according to the statutory regulations. The subsequent performance does neither include the disassembly of the faulty object nor the reassembly if we originally were not obliged to the assembly.

(8) The expenses which are necessary for the purpose of inspection and subsequent performance, in particular transport, route, work and material costs as well as potential disassembly and reassembly costs shall be borne resp. reimbursed by us according to the statutory regulations if there actually is a defect. Otherwise, we are entitled to demand the buyer to compensate us for the incurred costs (in particular for testing and transportation) resulting from the unjustified request for rectification, unless the missing defect has been unforeseeable to the buyer.

(9) In urgent cases, e.g. where operational safety is in jeopardy or to avoid disproportionately high damages, the buyer shall be entitled to rectify the defect by themselves and request reimbursement for the objectively necessary expenses from us. We shall be advised without delay, if possible beforehand, of self-remedying of defects. The right of self-remedy shall not apply if we would have been entitled to refuse the corresponding subsequent performance in accordance with the statutory regulations.

(10) If the subsequent performance has failed or a reasonable deadline which is to be set by the buyer for the subsequent performance has expired unsuccessfully or it is dispensable according to the statutory regulations, the buyer may cancel the purchase contract or reduce the purchase price. However, no right to cancellation exists for an insignificant defect.

(11) Even if there is a defect, claims of the buyer for damages or reimbursement of fruitless expenses shall only exist according to § 8 and are incidentally excluded.

§ 8 Other liability

(1) Insofar as not otherwise derived from these GSC, including the following provisions, we shall be liable according to the relevant statutory regulations in case of a breach of contractual and non-contractual duties.

(2) We shall be liable for damages – no matter for what legal grounds – within the framework of fault-based liability in case of wilful intent and gross negligence. In case of simple negligence, with subject to legal limitations of liability (e.g. diligence for own matters; insignificant breach of duty), we shall only be liable

a) for damages from the injury to life, body or health,

b) for damages from the breach of an essential contractual duty (obligation, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case our liability is however limited to the reimbursement of the foreseeable, typically occurring damages.

(3) The liability restrictions which can be derived from sec. 2 shall also apply to third parties as well as to breaches of duty (including to their advantage) by individuals for whose fault we have to be liable in accordance with statutory regulations. They do not apply to the extent that a defect has been fraudulently concealed or a guarantee for the structure of the goods has been accepted and for claims of the buyer according to the Product Liability Act.

(4) The buyer can only cancel or terminate the contract owing to the breach of a duty, which does not consist of a defect, if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 650, 648 BGB) is excluded. Incidentally the statutory pre-requisites and legal consequences shall apply.

§ 9 Statute of limitations

(1) Notwithstanding § 438 sec. 1 no. 3 BGB, the general statute of limitations for claims from defects of quality and title is one year from delivery. Insofar as an acceptance has been agreed, the statute of limitations shall begin with the acceptance.

(2) The aforementioned statutes of limitations of the law governing purchases shall also apply to contractual and non-contractual claims for damages of the buyer which are due to a defect to the goods, unless the application of the regular legal statute of limitations (§§ 195, 199 BGB) would lead to a shorter statute-of-limitations in an individual case. Claims for damages by the buyer in accordance with § 8 sec. 2 sentence 1 and sentence 2(a) as well as the Product Liability Law shall become statute-barred exclusively according to the statutory provisions.

§ 10 Choice of law and place of jurisdiction

(1) The law of the Federal Republic of Germany shall apply to this GSC and all legal relations between us and the buyer under the exclusion of all international uniform law, in particular the UN Convention on the Sale of Goods.

(2) If the buyer is a businessmanin the sense of the commercial code, a legal entity under public law or public special assets, is the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship our business headquarters in 88525 Dürmentingen, Germany. The same applies if the buyer is an entrepreneur in the sense of § 14 BGB. We are however in any case also entitled to file a suit in the place of fulfillment for the delivery commitment according to this GSC resp. an overriding individual agreement or at the general place of jurisdiction of the buyer. Statutory regulations of prime importance, in particular regarding exclusive jurisdiction, remain unaffected.