(as of 01.01.2007)
§ 1 - Validity
1.1 These General Terms and Conditions apply to all offers, contracts, deliveries or other services, including consulting services. They form the contractual basis of our business relations with the purchasers of our products and become part of the contract at the time of our acceptance of a contractual offer (an order). These terms and conditions also apply to future transactions with the customer.
1.2 We shall not be bound by any deviating terms and conditions of the customer which we do not expressly recognize in writing, even if we accept the order. Separate recognition shall only occur if we expressly agree to their validity in writing.
1.3 Deviating agreements, ancillary agreements and subsequent amendments to the contract shall only be valid if they are expressly confirmed in writing by authorized representatives.
§ 2 - Price and payment
2.1 Unless otherwise agreed, all prices are ex works, including loading at the factory, but excluding packaging, freight, postage, insurance, other shipping costs and unloading. Value added tax at the respective statutory rate shall be added to the prices.
2.2 In the absence of a special agreement, payment shall be made without any deduction to the Supplier's account, namely
- 30 % Down payment after receipt of order against down payment invoice
- 60 % as soon as the customer is informed that the main parts are ready for shipment
- 10 % after acceptance at the end customer's premises, but no later than 4 weeks after delivery
2.3 The customer shall only be entitled to withhold payments or offset them against counterclaims to the extent that his counterclaims are undisputed or have been legally established.
§ 3 - Delivery time, delay in delivery
3.1 The delivery time is determined by the agreements between the contracting parties. The supplier's compliance with the delivery time requires that all commercial and technical questions between the contracting parties have been clarified and that the customer has fulfilled all obligations incumbent upon him, such as the provision of materials, purchased parts and workpieces to be provided, the provision of all necessary information, technical details and parameters, the provision of necessary documents or technical drawings, the provision of the necessary official certificates or approvals or the making of a down payment. If this is not the case, the delivery time shall be extended accordingly. This shall not apply if the supplier is responsible for the delay.
3.2 Compliance with the delivery period is subject to correct and timely delivery to us, unless we are responsible for incorrect or delayed delivery. The supplier shall notify us as soon as possible of any impending delays.
3.3 The delivery deadline shall be deemed to have been met if the delivery item has left the Supplier's works by the time it expires or readiness for dispatch has been notified. If acceptance is to take place, the acceptance date shall be decisive - except in the case of justified refusal of acceptance - or alternatively the notification of readiness for acceptance.
3.4 If dispatch or acceptance of the delivery item is delayed for reasons for which the customer is responsible, the customer shall be charged the costs incurred as a result of the delay, starting one month after notification of readiness for dispatch or acceptance.
3.5 If non-compliance with the delivery time is due to force majeure, labor disputes or other events beyond the Supplier's control, the delivery time shall be extended accordingly. The Supplier shall notify the Purchaser of the beginning and end of such circumstances without delay. In the event of non-compliance with the delivery time for reasons for which we are responsible, claims for damages shall be excluded unless they are based on intent or gross negligence.
3.6 Partial deliveries are permissible, insofar as reasonable for the customer.
3.7 The Purchaser may withdraw from the contract without setting a deadline if the Supplier is finally unable to provide the entire service before the transfer of risk. In addition, the Purchaser may withdraw from the contract if, in the case of an order, the performance of part of the delivery becomes impossible and the Purchaser has a justified interest in rejecting the partial delivery. If this is not the case, the customer must pay the contract price for the partial delivery. The same applies if the supplier is unable to deliver. Otherwise, Section 7.2 shall apply. If the impossibility or inability occurs during the delay in acceptance or if the Purchaser is solely or predominantly responsible for these circumstances, it shall remain obliged to provide consideration.
3.8 If the Supplier is in default and the Purchaser suffers damage as a result, the Purchaser shall be entitled to claim liquidated damages for delay. This shall amount to 0.5 % for each full week of delay, but in total not more than 5 % of the value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay. If the Purchaser sets the Supplier a reasonable deadline for performance after the due date - taking into account the statutory exceptions - and if the deadline is not met, the Purchaser shall be entitled to withdraw from the contract within the framework of the statutory provisions. Further claims arising from the delay in delivery shall be determined exclusively in accordance with section 7.2 of these terms and conditions.
§ 4 - Transfer of risk/acceptance
4.1 The risk shall pass to the Purchaser when the delivery item has left the factory, even if partial deliveries are made or the Supplier has assumed other services, e.g. shipping costs or delivery. If acceptance has to take place, this shall be decisive for the transfer of risk, unless the supplier sends the work to a place other than the place of performance at the request of the customer. In this case, the risk shall pass to the Purchaser as soon as the Supplier has handed over the delivery item to the forwarding agent, the carrier or the person otherwise commissioned with the shipment.
4.2 If dispatch or acceptance is delayed or does not take place as a result of circumstances for which the Supplier is not responsible, the risk shall pass to the Customer from the day of notification of readiness for dispatch or acceptance. The Supplier undertakes to take out any insurance requested by the Customer at the Customer's expense.
§ 5 - Retention of title
5.1 The delivered goods shall remain our property until all claims arising from the business relationship, regardless of their legal basis, have been settled in full.
5.2 The supplier is entitled to insure the delivery item against theft, breakage, fire, water and other damage at the customer's expense, unless the customer has demonstrably taken out the insurance himself.
5.3 The customer may not sell, pledge or assign the delivery item as security before the transfer of ownership. In the event of seizure, confiscation or other dispositions by third parties, he must inform the supplier immediately.
5.4 In the event of breach of contract by the customer, in particular default of payment, the supplier shall be entitled to take back the delivery item after issuing a reminder and the customer shall be obliged to surrender it.
5.5 Due to the retention of title, the supplier can only demand the return of the delivery item if he has withdrawn from the contract.
5.6 The application for the opening of insolvency proceedings entitles the supplier to withdraw from the contract and to demand the immediate return of the delivery item.
5.7 The customer is entitled to resell the subject matter of the contract in the ordinary course of business as long as he is not in default of payment; he hereby assigns to the supplier all claims in the amount of the final invoice amount of the supplier's claim (including value added tax) which accrue to him from the resale against his customers or third parties, irrespective of whether the subject matter of the contract has been resold without or after processing. The supplier accepts this assignment. The customer shall remain authorized to collect this claim even after the assignment. The right of the supplier to collect the claim himself remains unaffected by this. The supplier undertakes not to collect the claim as long as the customer fulfills his payment obligations from the respective contractual relationship, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended. If this is the case, however, the supplier may demand that the customer discloses the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
5.8 The supplier reserves the right of ownership to samples, cost estimates, drawings and similar information. The supplier reserves the property rights and copyrights to samples, cost estimates, drawings and similar information of a physical and non-physical nature - also in electronic form. They may not be made accessible to third parties. The Supplier undertakes to make information and documents designated as confidential by the Purchaser accessible to third parties only with the Purchaser's consent.
§ 6 - Claims for defects
For material defects and defects of title in the delivery, the supplier shall provide the following warranty to the exclusion of further claims - subject to Section 7:
6.1 Material defects
6.1.1 All parts which prove to be defective as a result of a circumstance prior to the transfer of risk shall be repaired or replaced free of charge at the Supplier's discretion. The customer is obliged to notify the supplier in writing of all recognizable defects, shortages or incorrect deliveries immediately, but no later than three working days after delivery. If a defect becomes apparent at a later point in time, the Purchaser must notify the Supplier in writing immediately, but no later than three working days after discovery. If notification is not made in good time, the delivery item shall be deemed to have been accepted and approved without defects. Replaced parts shall become the property of the supplier.
6.1.2 After consultation with the Supplier, the Purchaser shall give the Supplier the necessary time and opportunity to carry out all repairs and replacement deliveries which the Supplier deems necessary; otherwise the Supplier shall be released from liability for the resulting consequences. Only in urgent cases where operational safety is jeopardized or to prevent disproportionately large damage - in which case the Supplier must be notified immediately - shall the Purchaser have the right to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary expenses from the Supplier.
6.1.3 Of the direct costs arising from the repair or replacement delivery, the Supplier shall bear the costs of the replacement part, including shipping, insofar as the complaint proves to be justified. He shall also bear the costs of removal and installation as well as the costs of any necessary provision of the necessary fitters and assistants, including travel costs, insofar as this does not result in a disproportionate burden on the supplier.
6.1.4 Within the framework of the statutory provisions, the Purchaser has the right to withdraw from the contract if the Supplier - taking into account the statutory exceptions - allows a reasonable deadline set for the repair or replacement delivery due to a material defect to expire without success. If there is only an insignificant defect, the customer shall only be entitled to a reduction of the contract price. The right to reduce the contract price is otherwise excluded. Further claims shall be determined in accordance with section 7.2 of these terms and conditions.
6.1.5 No warranty shall be assumed in particular in the following cases: unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences - unless the supplier is responsible for them.
6.1.6 If the Buyer or a third party carries out improper repairs, the Supplier shall not be liable for the resulting consequences. The same applies to changes made to the delivery item without the Supplier's prior consent.
6.2 Defects of title
6.2.1 If the use of the delivery item leads to an infringement of industrial property rights or copyrights in Germany, the Supplier shall, at its own expense, procure the right for the Purchaser to continue using the delivery item or modify the delivery item in a manner that is reasonable for the Purchaser so that the infringement of property rights no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period of time, the purchaser shall be entitled to withdraw from the contract. Under the aforementioned conditions, the Supplier shall also be entitled to withdraw from the contract. In addition, the Supplier shall indemnify the Purchaser against any undisputed or legally established claims of the owners of the property rights concerned.
6.2.2 Subject to Section 7.2, the Supplier's obligations specified in Section 6.2.1 are conclusive in the event of an infringement of intellectual property rights or copyrights. They shall only apply if
- the customer informs the supplier immediately of any asserted infringements of industrial property rights or copyrights,
- the customer supports the supplier to a reasonable extent in the defense against the asserted claims or enables the supplier to carry out the
of the modification measures in accordance with section 6.2.1,
- the supplier reserves the right to take all defensive measures, including out-of-court settlements,
- the defect of title is not based on an instruction of the customer,
- the infringement was not caused by the fact that the customer modified the delivery item without authorization or used it in a way that was not intended.
in accordance with the contract.
§ 7 - Liability
7.1 If the delivery item cannot be used by the customer in accordance with the contract due to the fault of the supplier as a result of omitted or faulty execution of suggestions and advice made before or after conclusion of the contract or due to the breach of other contractual secondary obligations - in particular instructions for operation and maintenance of the delivery item - the provisions of sections 6 and 7.2 shall apply accordingly, to the exclusion of further claims by the customer.
7.2 The Supplier shall only be liable for damage that has not occurred to the delivery item itself - for whatever legal reasons
a) in the case of intent,
b) in the event of gross negligence on the part of the owner/the executive bodies or senior employees,
c) in the event of culpable injury to life, limb or health,
d) in the case of defects which he has fraudulently concealed or the absence of which he has guaranteed,
e) in the case of mandatory liability under the Product Liability Act
In the event of culpable breach of material contractual obligations, the Supplier shall also be liable for gross negligence on the part of non-executive employees. In the case of breaches of duty due to slight negligence, liability shall be limited to the reasonably foreseeable damage typical of the contract, provided that it is a breach of essential contractual obligations (cardinal obligation). Liability for foreseeable damage typical of the contract is limited to the amount of the agreed purchase price. Further claims are excluded.
§ 8 - Statute of limitations
All claims of the customer - on whatever legal grounds - shall lapse after 12 months. The statutory periods shall apply to claims for damages in accordance with Section 7.2 a - e. They shall also apply to defects in a building or to delivery items that have been used for a building in accordance with their normal use and have caused its defectiveness.
§ 9 - Use of software
9.1 If software is included in the scope of delivery, the customer shall be granted a non-exclusive right to use the software supplied, including its documentation. It is provided for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited.
9.2 The Purchaser may only reproduce, revise, translate or convert the software from the object code into the source code to the extent permitted by law (§§ 69 a ff. UrhG). The Purchaser undertakes not to remove manufacturer's details - in particular copyright notices - or to change them without the prior express consent of the Supplier.
9.3 All other rights to the software and the documentation, including copies, shall remain with the Supplier or the software supplier. The granting of sublicenses is not permitted.
9.4 The provisions of section 5.8 apply accordingly.
§ 10 - Applicable law, place of jurisdiction
10.1 All legal relationships between the Supplier and the Customer shall be governed exclusively by the law of the Federal Republic of Germany applicable to legal relationships between domestic parties.
10.2 The Günzburg Local Court or the Memmingen Regional Court shall have jurisdiction for all legal disputes arising from the contractual relationship between the parties, depending on the statutory limit on the amount in dispute. In addition, Kötz shall expressly be the place of performance.
10.3 If individual provisions are invalid, the invalidity shall be limited to the corresponding clause. The invalid clause shall then be replaced by a clause that comes closest to the economic sense and purpose of the invalid provision in an effective manner. The same applies to any loopholes in these General Terms and Conditions.
