General terms and conditions of business

Scope of application

These General Terms and Conditions of Sale (GTCS) apply to all our business relationships with our customers (‘Buyers’). The GTCS only apply if the Buyer is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law within the meaning of Section 310 (1) BGB.
Our General Terms and Conditions of Sale shall apply exclusively. Any of the buyer's general terms and conditions that differ, conflict with or supplement these terms and conditions shall only become part of the contract if and to the extent that we have expressly agreed to their application. This requirement of consent shall also apply if the buyer refers to its general terms and conditions in the context of the order and we have not expressly objected to the general terms and conditions.
These General Terms and Conditions of Sale apply to contracts for the sale and/or delivery of movable items (‘Goods’). It is irrelevant whether we manufacture the goods ourselves or purchase them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, the General Terms and Conditions of Sale shall apply in the version valid at the time of the buyer's order or in the version last communicated to him in text form as a framework agreement for similar future contracts, without us as the seller having to refer to them again in individual cases (as a precaution, the General Terms and Conditions of Sale should always be attached to the order confirmation).
Individual agreements made with the buyer in individual cases (including collateral agreements, supplements and amendments) and information in our order confirmation take precedence over these General Terms and Conditions of Sale. Subject to proof to the contrary, a written contract or our written confirmation is decisive for the content of such agreements.
Legally relevant declarations and notifications by the buyer with regard to the contract (e.g. notifications of defects, setting of deadlines, withdrawal or reduction) must be made in writing, i.e. in written and text form (e.g. letter, email, fax). Further legal formal requirements and further evidence (if necessary in case of doubt as to the legitimacy of the declaring party) remain unaffected.
Where reference is made to the applicability of statutory provisions, it should be noted that this is for the sake of clarity only. The statutory provisions shall apply, even if no corresponding clarification has been made, within the limits in which they are not modified or excluded by the General Terms and Conditions of Sale.

Offer and conclusion of contract

Our offers are subject to change and are non-binding. This also applies if we have provided the buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards) and other product descriptions or documents (including in electronic form). We reserve the ownership rights and copyrights to all documents provided to the buyer in connection with the order. These documents may not be made accessible to third parties unless we give the customer our express written consent to do so.
When the buyer orders the goods, it is a non-binding offer of a contract according to Section 145 of the German Civil Code (BGB). In the event that nothing else arises from the order, we are entitled to accept this offer of a contract within two weeks of its receipt by us.
The buyer's acceptance of the contractual offer can be declared either in writing (e.g. by means of an order confirmation) or by delivery of the goods to the buyer. In the event that we, as the seller, do not accept the buyer's offer within the period specified in Section II.2, any documents sent to the buyer must be returned to us immediately.

Prices and payment agreements

Unless otherwise agreed in writing in individual cases, our prices ex warehouse current at the time of the conclusion of the contract shall apply, plus statutory value added tax. Packaging costs shall be invoiced separately. Unless a fixed price has been agreed, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries made 3 months or more after the conclusion of the contract.
In the context of a sale to destination, the buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the buyer. Any customs duties, fees, taxes and other public charges shall be borne by the buyer.
Payment of the purchase price shall be made exclusively to the account specified overleaf. The deduction of cash discount is only permissible if specifically agreed in writing.
Unless otherwise agreed, the purchase price shall be due and payable within fourteen days of the invoice date and delivery or acceptance of the goods. However, we shall be entitled at any time, even in the context of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
The buyer shall be in default when the above payment period expires. During the period of default, interest shall be paid on the purchase price at the respective applicable statutory default interest rate in accordance with Section 288 (2) BGB in the amount of nine percentage points above the respective base interest rate. We reserve the right to claim further damages for default. Our claim for commercial interest after due date against merchants remains unaffected in accordance with Section 353 HGB.
If, after the contract has been concluded, it becomes apparent that our claim to payment of the purchase price is at risk due to the buyer's inability to pay (e.g. due to an application for the opening of insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and, if necessary after setting a deadline, to withdraw from the contract (Section 321 BGB). In the case of contracts in which the manufacture of specific items (custom-made items) is owed, we may immediately declare a withdrawal. The statutory provisions on the dispensability of setting a deadline remain unaffected in this respect.
The buyer shall only be entitled to rights of set-off or retention if his claim has been legally established or is undisputed, and his counterclaim is based on the same contractual relationship. In the event that defects occur in the context of the delivery, the buyer's counterclaims, in particular in accordance with IX paragraph 6 sentence 2 of these General Terms and Conditions of Sale, shall remain unaffected.

Delivery period and default in delivery

The delivery period shall be agreed individually or specified by us when we accept the order. If this is not the case, the delivery period shall be approximately 2 weeks from the conclusion of the contract.
In the event that we are unable to meet contractually agreed delivery times for reasons for which we are not responsible, we shall inform the buyer of this circumstance without delay and at the same time notify the buyer of the expected or new delivery time. If a delayed delivery cannot be made due to non-availability of the service even within the newly announced delivery period, we are entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already provided by the buyer (in the form of payment of the purchase price). The service is deemed to be unavailable, for example, if our supplier has failed to deliver to us on time, if we have concluded a congruent hedging transaction, if there are other disruptions in the supply chain (e.g. due to force majeure) or if we are not obliged to procure in individual cases.
Whether or not we, as the seller, are in default of delivery is determined by the statutory provisions. However, a prerequisite for us, as the seller, being in default of delivery is a reminder from the buyer. In the event of a delay in delivery, the buyer can claim liquidated damages for the loss caused by the delay. The flat-rate compensation shall be 0.5% of the net price (delivery value) for each full calendar week of delay, but not more than 5% of the delivery value of the goods delivered late. We reserve the right to prove that the buyer has not incurred any damage or only a smaller damage than the above flat rate.
The rights of the buyer according to X. of these General Terms and Conditions of Sale and our legally standardised rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.

Delivery, Transfer of Risk, Acceptance, Default of Acceptance

Delivery is ex warehouse. The warehouse is also the place of performance for the delivery and the place for any subsequent performance. In the event that the buyer wishes the goods to be sent to a different destination (sale to destination), the buyer shall bear the costs of shipment. In the event that nothing has been contractually agreed, we ourselves can determine the type of shipment (packaging, shipping route, transport company).
When the goods are handed over to the buyer, the risk of accidental loss and accidental deterioration passes to the buyer. In the case of a sale to destination, the risk of accidental loss of the goods, accidental deterioration of the goods and the risk of delay shall pass to the buyer upon delivery of the goods to the carrier or freight forwarder. In the event of a contractual agreement for acceptance of the goods, this is decisive for the transfer of risk. Further legal provisions of the law on contracts for work and services remain unaffected. If the buyer is in default of acceptance, this is deemed equivalent to handover or acceptance of the goods.
In the event that the buyer is in default of acceptance or if our delivery is delayed for other reasons for which the buyer is responsible, we shall have a claim against the plaintiff for compensation for the damage incurred, including additional expenses (e.g. storage costs). Statutory claims on our part (reimbursement of additional expenses, reasonable compensation, termination) as well as proof of higher damages shall remain unaffected.
The right to prove greater damage and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) remain unaffected; however, the lump sum is to be offset against further monetary claims. However, the buyer reserves the right to prove that we have incurred no damage at all or only significantly less damage than the above lump sum.

We reserve ownership of the delivered goods until full payment of all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
Until full payment of the secured claims has been made, the goods subject to retention of title may neither be pledged to third parties nor assigned as security. The buyer must notify us in writing without delay in the event of an application being made to open insolvency proceedings or if third parties access the goods belonging to us (e.g. seizures). If the third party is unable to reimburse us for the judicial and extrajudicial costs of a lawsuit in accordance with Section 771 of the German Code of Civil Procedure (ZPO), the customer shall be liable for the loss incurred by us.
In the event of a breach of contract by the buyer, in particular non-payment of the due purchase price, we are entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for surrender does not at the same time include a declaration of withdrawal; rather, we are entitled to demand only the surrender of the goods and to reserve the right of withdrawal. In the event that the buyer does not pay the due purchase price, we must have unsuccessfully set the buyer a reasonable deadline for payment before asserting these rights. This shall only apply if such a deadline is not dispensable according to the statutory provisions.
The buyer is authorised until further notice in accordance with VII. 4. Lit. c to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:

The products of our goods that arise through combining, mixing or processing are subject to retention of title at their full value, whereby we are considered the manufacturer. In the event that, in the case of combining, mixing or processing with the goods of third parties, the ownership rights of the latter remain in force, we shall acquire co-ownership in proportion to the invoice values of the combined, mixed or processed goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title. The buyer shall also assign to us, for security purposes, those claims against a third party that arise from the connection of the goods subject to retention of title with a property. We shall accept the assignment in this case.

The buyer hereby assigns to us, in advance and in total or in the amount of our possible co-ownership share in accordance with VII. 4. lit. a, for security purposes, the claims against third parties arising from the resale of the goods or products in the amount of the final invoice amount agreed with us (including value added tax). We accept the assignment. The buyer's obligations listed in VII. 2. shall also apply in view of the assigned claims.

The buyer remains authorised to collect the claim alongside us. As long as the buyer meets their payment obligations to us, there is no lack of ability to pay on the part of the buyer and we do not assert the reservation of title by exercising a right in accordance with VII. 3., we undertake not to collect the claim. If we assert the exercise of a right in accordance with VII. 3., we may demand that the buyer disclose the assigned claims and their debtors, as well as that the buyer provide all information necessary for collection, hand over the relevant documents and notify the debtors (third parties) of the assignment. Furthermore, we are entitled to revoke the buyer's right to resell the goods and to process the goods subject to retention of title.

In the event that the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the buyer's request.

The customer is obliged to treat the purchased item with care as long as ownership has not yet been transferred to him. In particular, he is obliged to insure it sufficiently at his own expense against theft, fire and water damage at replacement value (Note: only permissible for the sale of high-quality goods). If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.

Claims for defects by the buyer

The rights of the buyer in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions) are governed by the statutory provisions, unless otherwise specified below. The statutory provisions on the sale of consumer goods (Sections 474 et seq. of the German Civil Code (BGB)) and the rights of the buyer under separate guarantees, in particular from the manufacturer, remain unaffected.
Agreements that we have made with buyers regarding the nature and intended use of the goods (including accessories and instructions) regularly form the basis of our liability for defects under the warranty. An agreement on quality includes all product descriptions and manufacturer's specifications that are the subject of the individual contract or that we (in particular in catalogues or on our website) had made public at the time of the conclusion of the contract. In the event that no quality has been agreed, the question of whether a defect exists shall be assessed in accordance with the provisions of Section 434, paragraph 3 of the German Civil Code (BGB). In this context, it should be noted that public statements made by the manufacturer in the context of advertising or on the product label take precedence over statements made by other third parties.
For goods with digital elements or other digital content, it should be noted that we are only obliged to provide and update the digital content if this is expressly stated in a quality agreement in accordance with IX.2. We do not assume any liability for public statements made by the manufacturer or other third parties.
We shall not be liable for defects of which the buyer was aware at the time of conclusion of the contract in accordance with Section 442 of the German Civil Code (BGB) or was not aware due to gross negligence.
The buyer shall only be entitled to claims for defects if the buyer has fulfilled his statutory inspection and notification obligations (Sections 377, 381 of the German Commercial Code (HGB)). If the goods are building materials or other goods intended for installation or other types of further processing, an inspection must be carried out immediately before processing. Written notification must be sent to us without delay if a defect is discovered during delivery, inspection or at a later point in time. Obvious defects must be reported to us in writing within five working days of delivery, and hidden defects within the same period of time from the time they are detected. If the buyer fails to fulfil or does not fulfil his obligation to properly inspect the goods and/or report defects, we shall not be liable for defects that are not reported, or are not reported in time or properly, in accordance with the statutory provisions. If the goods were intended for installation, mounting or fitting, this shall also apply if the defect only became apparent after the corresponding processing as a result of non-compliance with or breach of one of these obligations. In this case, the buyer shall not be entitled to claim compensation for ‘installation and removal costs’.
If the delivered goods are defective, we, as the seller, have the right to choose whether we provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (subsequent delivery). In the event that the type of subsequent performance we have chosen is unreasonable for the buyer in individual cases, the buyer can refuse it. However, we reserve the right to refuse subsequent performance under the statutory conditions. In addition, we are entitled to make the subsequent performance dependent on the buyer paying the purchase price due. However, the buyer has the right to withhold a reasonable portion of the purchase price in relation to the defect.
The buyer shall grant us the necessary time and opportunity for the subsequent performance to be rendered. In particular, the buyer shall hand over the item for which he has asserted a defect for inspection purposes. In the event that we carry out a subsequent delivery of a defect-free item, the buyer shall return the defective item to us in accordance with the statutory provisions. However, the buyer shall not be entitled to a claim for return.
Unless we have contractually undertaken to do so, the subsequent performance shall not include the removal, disposal or de-installation of the defective item nor the installation, fitting or installation of a defect-free item. The buyer's claims for compensation for ‘installation and removal costs’ shall remain unaffected by this.
We will reimburse the expenses necessary for inspection and subsequent performance (transport, labour and material costs, as well as any dismantling and installation costs) in accordance with the statutory provisions and these General Terms and Conditions of Sale in the event of a defect. However, we may demand reimbursement from the buyer for costs incurred due to an unjustified request for the rectification of defects in the event that the buyer knew or should have realised that there was no defect.
The buyer has the right to rectify the defect itself and to demand compensation for the expenses objectively required for this if there is an urgent case (e.g. in the event of a risk to operational safety or to prevent disproportionate damage). The buyer must inform us immediately in the event of self-remedy. In the event that we would be entitled to refuse subsequent performance in accordance with the statutory provisions, the buyer shall have no right to self-remedy.
The buyer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions if a period to be set by the buyer for subsequent performance has expired without success or is dispensable under the statutory provisions. However, the buyer shall not have the right to withdraw in the event of a minor defect.
Claims by the buyer for reimbursement of expenses in accordance with Section 445a (1) BGB are excluded, unless the last contract in the supply chain is a consumer goods purchase (Sections 478, 474 BGB) or a consumer contract for the provision of digital products (sections 445c sentence 2, 327 paragraph 5, 327u BGB).
Claims for damages or claims for reimbursement of wasted expenditure by the buyer (Section 284 BGB) shall only exist, even in the event of a defect, in accordance with X. and XI.
The general limitation period for claims resulting from material defects or defects of title is one year from delivery, in deviation from Section 438 (1) no. 3 BGB. In the event that acceptance has been contractually agreed, the limitation period shall commence upon acceptance.
The statutory period of limitation is 5 years from delivery (Section 438, paragraph 1, no. 2 of the German Civil Code) in the event that the goods are a building or an item that has been used for a building in accordance with its usual purpose and has caused the defectiveness of the building (building material). This applies subject to the further special statutory provisions on the statute of limitations (in particular Section 438 (1) no. 1, (3), Sections 444, 445b BGB).
The above limitation periods of the law governing sales shall also apply to contractual and non-contractual claims for damages by the buyer that are based on a defect in the goods, unless the application of the regular statutory limitation period in accordance with sections 195, 199 BGB would lead to a shorter limitation period in individual cases. Claims for damages by the buyer in accordance with XI.1 and XI.2 lit. a) as well as those under the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.

Other liability

We as the seller shall be liable, unless otherwise provided for in these General Terms and Conditions of Sale, including the following provisions, in the event of breaches of contractual and non-contractual obligations in accordance with the statutory provisions.
In the context of fault-based liability, we shall be liable, regardless for what legal reason, for damages only in the event of intent or gross negligence. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in our own affairs; minor breach of duty), only
for damages resulting from injury to life, limb or health
for damages resulting from the breach of a material contractual obligation (obligations whose fulfilment is essential to the proper performance of the contract and on whose compliance the contractual partner relies and may rely). However, in this case, our liability is limited to compensation for foreseeable, typically occurring damages.
The liability restrictions arising in accordance with XI.2 also apply to third parties and to breaches of duty by persons for whose fault we are responsible according to legal regulations. Insofar as a defect has been fraudulently concealed and a guarantee for the quality of the goods has been assumed, the liability restrictions do not apply. This also applies to claims of the buyer under the Product Liability Act.
The buyer can only withdraw or terminate the contract due to a breach of duty that does not result from a defect in the event that we, as the seller, are responsible for the breach of duty.
A right of termination for the buyer (in particular according to sections 650, 648 BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.

Choice of law and place of jurisdiction

The law of the Federal Republic of Germany shall apply to these General Terms and Conditions of Sale and the contractual relationship between us as seller and the buyer, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, our place of business in Eggingen is the exclusive and international place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the buyer is an entrepreneur within the meaning of Section 14 BGB.
We are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions of Sale or a prior individual agreement, or at the buyer's general place of jurisdiction. This does not affect overriding statutory provisions (exclusive places of jurisdiction).

01.01.2024 – rev. 1.2