General information, scope of application
(1) Our General Terms and Conditions of Sale for Commercial and Entrepreneurial Business Customers (hereinafter referred to as “Terms and Conditions of Sale”) apply to all contracts concluded for commercial and entrepreneurial customers as of July 1, 2018, which primarily relate to the delivery of movable goods (“Goods”).
(2) Our Terms and Conditions of Sale shall apply exclusively; we do not recognise any terms and conditions of the Buyer that conflict with or deviate from our Terms and Conditions of Sale or from the statutory provisions unless we have explicitly agreed to their validity in writing. Our Terms and Conditions of Sale shall also apply if we accept the Buyer's performance without reservation or render our services without reservation in the knowledge that the Buyer's terms and conditions conflict with or deviate from our Terms and Conditions of Sale.
(3) Our Terms and Conditions of Sale shall only apply if the Buyer is an entrepreneur, a legal entity under private law, a legal entity under public law or a special fund under public law. In particular, they do not apply if the buyer is a consumer. By placing an order, the buyer confirms that he is an entrepreneur, a legal entity under private law, a legal entity under public law or a special fund under public law.
(4) References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these Terms and Conditions of Sale.
§ 2 Offer, conclusion of contract, correction of input errors and content of the contract
(1) The presentation of our offers does not constitute a legally binding offer, but an invitation to order or place an order.
(2) The purchase contract is concluded when we accept the buyer's order by sending an order confirmation by e-mail immediately after receiving your order or by sending a separate order confirmation no later than five days after the buyer's order. The confirmation of receipt of the order follows immediately after the order has been sent and does not yet constitute acceptance of the contract.
(3) Our information on goods does not constitute a guarantee of the quality or durability of the goods to be supplied by us. Any guarantees which are to be assumed by us at the time of conclusion of the contract require express written confirmation as a ‘guarantee’.
(4) With the exception of acceptance of the goods in accordance with § 433 Para. 2 BGB, acceptance of the goods is not agreed.
(5) With the conclusion of the contract, we do not assume any procurement risk within the meaning of § 276 BGB. Furthermore, we do not assume any guarantee for the goods.
(6) All agreements made between us and the buyer for the purpose of executing this contract at the time of conclusion of the contract are set out in writing in the contract and these terms and conditions of sale.
(7) We reserve all property rights and copyrights to illustrations, drawings, calculations and other documents.
§ 3 Delivery, shipping costs, transfer of risk
(1) If no other delivery modality has been agreed, delivery shall be CPT Incoterms 2010 (place of delivery: Holdereggenstr. 24b, 88131 Lindau) with destination to the shipping address specified by the buyer in the ordering process. Notwithstanding the Incoterms clause CPT Incoterms 2010, the buyer shall pay shipping costs in accordance with § 3 (2) of these Terms and Conditions of Sale, depending on the purchase value.
(2) Germany: From a purchase value of € 350.00 net we bear the shipping costs, below that the buyer has to bear the shipping costs in the respective amount. Austria: From a purchase value of € 350.00 net we bear the shipping costs, below that the buyer has to bear the shipping costs in the respective amount.
(3) The transfer of risk takes place upon delivery.
(4) Agreed delivery periods do not constitute a fixed-date transaction.
(5) We are authorised to make partial deliveries and render partial services within the agreed delivery periods or by the agreed delivery date, insofar as this is reasonable for the buyer.
(6) If we are unable to meet binding delivery deadlines or delivery dates for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this immediately and at the same time inform the Buyer of the expected new delivery deadline or the new delivery date. If the service is also not available within the new delivery period or on the new delivery date for reasons for which we are not responsible, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the Buyer. A case of non-availability of the service in this sense includes, in particular, the failure of our supplier to deliver to us in good time if we have concluded a congruent hedging transaction or if neither we nor our supplier are at fault.
§ 4 Prices, terms of payment and default of payment
(1) Unless otherwise stated in the order confirmation, our prices are CPT Incoterms 2010, including packaging. Any shipping costs are set out in Section 3 (2) of these Terms and Conditions of Sale.
(2) The Buyer shall be obliged to pay the full purchase price without discount plus any shipping costs incurred on the date specified in the written order confirmation or, if no such date is specified, upon issue of the invoice to the account specified by us free of costs and charges. The receipt of payment in our account shall be decisive for the timeliness of payment. The agreed purchase price plus any shipping costs incurred shall cover the services incumbent upon us. The statutory value added tax is shown separately and is to be paid additionally by the purchaser.
(3) The statutory provisions shall apply to default of payment. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to claim further damages caused by default. Our claim against merchants for commercial maturity interest in accordance with § 353 HGB remains unaffected.
(4) The purchaser shall only be entitled to rights of set-off and retention if his counterclaims have been legally established, are undisputed or recognised by us or are based on the same contractual relationship.
§ 5 Rights of the buyer in case of defects
(1) The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly and/or defective assembly instructions), unless otherwise specified below. In all cases - even if this is not mentioned separately below - the statutory provisions according to § 445a BGB (recourse of the buyer against us in the event that he has to bear expenses in relation to his customer in the context of subsequent fulfilment according to § 439 para. 2 and/or para. 3 BGB) § 445b BGB (limitation of recourse claims for newly manufactured goods) and § 478 BGB (special provisions for entrepreneurial recourse in the case of a consumer goods purchase) remain unaffected).
(2) The goods are defective if they deviate noticeably from the specifications stated in the order confirmation at the time of the transfer of risk. If no specifications are mentioned in the order confirmation, the goods are defective if they deviate from the quality customary in Germany.
(3) The goods shall only have defects of title if they are not free of rights enforceable in Germany at the time of transfer of risk.
(4) Claims for defects on the part of the buyer presuppose that the buyer has properly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code), taking into account the provisions contained in these terms and conditions of sale.
(5) The Buyer is obliged to inspect the goods immediately after delivery. If the inspection reveals that the goods are defective, the Buyer must notify us in writing of the precise complaints without delay, but at the latest within seven (7) calendar days of delivery of the goods. Hidden defects must be reported immediately after their discovery.
(6) The notification must be sent to us in writing and directly. It must be worded so precisely that we can initiate remedial measures and secure recourse claims against our suppliers without further enquiry from the Buyer. In all other respects, the complaint must comply with the statutory provisions.
(7) If a defect in the goods is notified in good time, we shall be entitled, at our discretion, to subsequent fulfilment in the form of rectification of the defect or delivery of a new defect-free item.
(8) If the goods sold by us are newly manufactured goods, we shall be obliged - without waiving the statutory provisions and those contained in these Terms and Conditions of Sale, in particular without waiving the objection of disproportionality pursuant to Section 439 (4) BGB - to reimburse the Buyer for the necessary expenses for the removal of the defective goods and the installation or attachment of the repaired or delivered defect-free goods within the scope of subsequent fulfilment, provided that the Buyer has installed the defective goods in another item or attached them to another item in accordance with their type and intended use.
(9) Insofar as the Buyer has suffered damage or incurred futile expenses due to defects in goods delivered by us, the provisions of § 6 of these Terms and Conditions of Sale shall apply in addition.
(10) Subject to § 445b BGB (limitation period for recourse claims for newly manufactured goods) and § 478 BGB (special provisions for entrepreneurial recourse in the case of a purchase of consumer goods) and subject to the usual use of the delivered goods for a building and the causation of a building defect, any claims of the buyer for delivery of new defective goods shall become statute-barred one (1) year after the statutory commencement of the limitation period pursuant to § 438 para. 2 BGB. Claims for fraudulent, intentional and grossly negligent breach of contract as well as claims for injury to life, limb and health shall remain unaffected. Replacement delivery or rectification of defects shall not lead to a recommencement of the limitation period.
§ 6 Liability for damages and expenses
(1) Our liability for damages and expenses shall be governed by the following provisions in addition to the above provisions in § 5 of these Terms and Conditions of Sale. In all cases - even if this is not mentioned separately below - the statutory provisions according to § 445a BGB (recourse of the buyer against us in the event that he has to bear expenses in relation to his customer within the scope of subsequent fulfilment according to § 439 para. 2 and/or para. 3 BGB), § 478 BGB (special provisions for entrepreneur recourse in the case of a consumer goods purchase) as well as our obligation to bear the expenses necessary for the purpose of subsequent fulfilment in accordance with § 439 para. 2 and/or para. 3 BGB, provided that the goods sold by us are a newly manufactured item.
(2) Our liability for damages or futile expenses incurred by the Buyer - irrespective of the legal grounds - shall only apply if the damage or futile expenses a) were caused by a culpable breach of an obligation, the fulfilment of which is essential for the proper performance of the contract and on the observance of which the Buyer may regularly rely (material contractual obligation), or b) are due to a grossly negligent or intentional breach of duty.
(3) If we are liable pursuant to § 6 para. 2 a) of these Terms and Conditions of Sale for the breach of a material contractual obligation, our liability for damages shall be limited to the typically occurring damage foreseeable at the time of conclusion of the contract.
(4) The above limitations of liability set out in § 6 (2) to (3) of these Terms and Conditions of Sale shall not apply to liability (a) under the Product Liability Act, (b) due to the assumption of a guarantee for the quality of the goods, (c) due to fraudulent concealment of a defect, (d) for damages resulting from culpable injury to life, limb or health and (e) for damages resulting from gross negligence or wilful breach of duty. (5) The above provisions shall apply subject to - § 445a BGB (recourse of the buyer against us in the event that he has to bear expenses in relation to his customer within the scope of subsequent fulfilment in accordance with § 439 para. 2 and/or para. 3 BGB), - § 445b BGB (limitation period for recourse claims for newly manufactured goods), - § 478 BGB (special provisions for entrepreneur recourse in the case of a purchase of consumer goods) and subject to - the expenses to be borne by us for the purpose of subsequent fulfilment in accordance with § 439 para. 2 and/or para. 3 BGB, insofar as the goods sold by us are newly manufactured goods, also for claims of the buyer for reimbursement of expenses.
§ 7 Retention of title
(1) We reserve title to the goods sold until all our current and future claims arising from the contract (secured claims) have been paid in full. If the buyer has not paid in advance, we also reserve title to the goods sold for all current and future claims (secured claims) arising from the ongoing business relationship.
(2) The goods subject to retention of title may not be pledged to third parties, assigned as security or resold before full payment of the secured claims. The purchaser must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties have access to the goods belonging to us.
(3) In the event of breach of contract by the buyer, in particular non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and then demand the return of the goods on the basis of the retention of title.
(4) If the Buyer processes the goods subject to retention of title in the ordinary course of business, the retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods, a third party right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title. (5) If 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.
§ 8 Software
(1) If software is included in the scope of delivery, the buyer is granted a non-exclusive right to use the software supplied, including its documentation. It is provided for use on the goods intended for this purpose. Use of the software on more than one system is prohibited.
(2) The purchaser may only reproduce, revise, translate or convert the software from object code to 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 our prior express consent.
(3) All other rights to the software and documentation, including copies, shall remain with us or the software supplier. The granting of sub-licences is not permitted.
§ 9 Place of fulfilment, choice of law and place of jurisdiction
(1) The place of delivery follows from § 3 para. 1 of these Terms and Conditions of Sale. The place of payment and fulfilment for all other obligations arising from the contract with the buyer is Holdereggenstr. 24b, 88131 Lindau, Germany. These provisions shall also apply if services rendered are to be cancelled. However, we reserve the right to carry out subsequent fulfilment at the place where the goods are located.
(2) These Terms and Conditions of Sale and the contractual relationship between us and the Buyer shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(3) 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, the exclusive place of jurisdiction for all disputes arising from the purchase contract shall be our registered office in 88131 Lindau, provided that the buyer is domiciled in the Federal Republic of Germany. However, we are also entitled in all cases to bring an action at the general place of jurisdiction of the buyer. Overriding statutory provisions on exclusive jurisdiction remain unaffected.
(4) If the buyer is domiciled outside the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from the purchase contract shall be our registered office in 88131 Lindau, Germany. In this case, however, we are also entitled to sue the buyer before the state courts at his place of business. Overriding statutory provisions on exclusive jurisdiction remain unaffected.
§ 10 Other
(1) Should provisions of these Terms and Conditions of Sale be or become invalid in whole or in part, the remaining provisions shall remain valid.
(2) Neither a handwritten signature nor an electronic signature is required to fulfil the written form requirement. Notifications by e-mail fulfil the written form requirement. Provisions on the written form in European regulations (e.g. Art. 25 para. 2 Regulation 1215/2012) remain unaffected.
(3) We save the text of the contract. The contract language is German. (5) § 312 i) BGB para. 1 sentence 1 no. 2 BGB (information obligations according to § 246 c EGBGB) does not apply.
Date: 06 / 2022