1. Validity and conclusion of contract
These terms of sale apply exclusively to the entire business relationship between the buyer and us. Purchasing conditions and other terms and conditions of the buyer are hereby contradicted. The acceptance and execution of orders does not constitute an acknowledgment of the buyer's conditions nor a waiver of our following conditions, even if we do not expressly object to a request by the buyer to that effect. Should one of the provisions of these terms of sale be or become invalid, this does not affect the validity of the contract; instead, the statutory regulation applies. In no case shall the relevant provision in these Conditions of Sale be replaced by the Buyer's terms and conditions. Our written confirmation is decisive for the conclusion of the contract. The regulations of § 312 e Abs. 1 S. 1 Nr. 1-3 BGB on obligations in electronic business transactions are expressly waived between us and the buyer.
2. Prices and prohibition on offsetting
All prices are EXW Incoterms® 2020 plus statutory sales tax, unless otherwise agreed in writing. If customs duties, taxes, fees and other charges increase after the conclusion of the contract, this is at the expense of the buyer. In particular, an increase in the statutory sales tax rate between the conclusion of the contract and the actual delivery means that the agreed gross purchase price increases accordingly. The same applies to the increase in transport costs, regardless of whether these are to be borne by the buyer or by us. Offsetting by the buyer with counterclaims is excluded, unless the buyer's claims are undisputed or have been legally established; this does not apply to counterclaims from the same contractual relationship. The regulations on offsetting and the right of retention also apply to the assertion of defects.
3. delivery time
3.1 Unless otherwise expressly agreed, promised delivery periods and delivery dates (delivery time) refer to the time of dispatch or handover for collection and in no case constitute a fixed transaction. All delivery times are subject to proper and timely self-delivery. If the delivery time is exceeded, the buyer is entitled to set a reasonable grace period and, after its expiry, to withdraw from the contract with regard to the goods or quantities not yet delivered. For further claims, in particular claims for damages, applies Numeral 8.
3.2 Force majeure and events over which we have no influence, such as in particular orders from higher authorities, labor disputes including strikes and lawful lockouts, lack of energy and raw materials, transport obstacles or unavoidable operational disruptions, release us for the duration of the disruption and to the extent of its effects our delivery obligation. If the disruption is not remedied within a reasonable period of time, we are entitled to withdraw from the contract, to the exclusion of any liability for damages. If the delivery delayed or restricted by such a disruption is demonstrably no longer of interest to the buyer, we will release him from the acceptance obligation, provided that this does not cause us any further disadvantages beyond the loss of profit.
3.3 The above regulation in paragraph 2 also applies if force majeure or one of the events mentioned in paragraph 2 occurs on the part of our suppliers.
4. Late Payment and Prepayment
If the buyer is more than 14 days in arrears with the payment of one of our invoices or if we receive information or knowledge of facts after conclusion of the contract that justify doubts about his solvency or creditworthiness, we are entitled, regardless of agreed payment terms or accepted bills of exchange, to immediate payment of all to request the outstanding invoice from the business relationship. Under the same conditions, we can make the execution of outstanding deliveries dependent on advance payment and, if this is not made within a reasonable period, we can withdraw from the contract.
5. Passing of Risk
The risk passes to the buyer as soon as the goods have been handed over to the transport company or have left our warehouse. Shipping is always at the risk of the buyer. This also applies if we bear the costs of transport and/or insure them on the basis of individual agreements. All agreed delivery clauses only regulate the bearing of costs.
6. Retention of Title
6.1 The goods (“reserved goods”) remain our property until the purchase price has been paid in full. The reserved goods remain our property until all other payment claims due at the time of the conclusion of the contract from the business relationship between us and the buyer have been settled in full. These reserved goods remain our property until our future claims have been paid in full. If we are liable for a bill of exchange in connection with the payment of the purchase price (cheque/bill of exchange procedure), our retention of title does not expire before the bill of exchange is redeemed by the drawee. The buyer is entitled to process and sell the reserved goods in the ordinary course of business, to which the following regulations apply.
6.2 If our reserved goods are processed by the buyer or a third party commissioned by him, we are manufacturers within the meaning of § 950 BGB and acquire ownership of the resulting products. If the processing takes place together with materials from others, we acquire co-ownership of the new item at every degree of processing in relation to the invoice value of our reserved goods to the total value of the materials from the others. The same applies to the cases of connection and mixing within the meaning of §§ 947, 948 BGB. The regulation in § 947 paragraph 2 BGB is waived. Instead, the regulation applies as set out above for processing.
6.3 A pledging or security transfer of the reserved goods is excluded. The buyer hereby assigns all claims from the sale of reserved goods to us as security to the extent of our ownership share in the goods sold, and we accept this assignment; this also applies to a company sale. The buyer is only authorized to collect these claims as long as he properly meets his payment obligations to us. The assignment of claims is excluded.
6.4 If the buyer defaults in payment by more than 1 month, the buyer stops making payments, a check or bill of exchange protest at the buyer (insofar as we are in any way beneficiary of this check or bill of exchange), a seizure of reserved goods or the application for the opening of the In the event of insolvency proceedings or judicial or extrajudicial settlement proceedings regarding the buyer's assets, the buyer's right to process or combine/mix, as well as the right to resell the goods subject to retention of title and the right to collect the claims shall expire. We must be informed immediately of the above events. The return request and the return of the reserved goods are not considered withdrawal from the contract.
6.5 At our request, the buyer must provide us with all necessary information about the status of the goods that we own or co-own and about the claims assigned to us, and inform his customers of the assignment. He must notify us immediately of access by third parties to such goods or claims. He must insure such goods adequately against the usual risks at his own expense.
6.6 If the value of the securities existing for us exceeds the claims to be secured by more than 10%, we will release securities of our choice at the request of the buyer. When valuing the collateral, the proceeds that can be realized upon realization of the collateral are to be assumed. The buyer must immediately provide us with the information necessary for this evaluation upon request.
7. Initial inspection, notification of defects, liability for defects
7.1 The buyer or the recipient designated by him must check the goods immediately upon receipt, in any case before treatment and processing. After the discovery of defects, the treatment and processing of the defective item must be stopped immediately. Obvious defects - including the lack of quality guarantees - must be reported in writing immediately, but no later than within 7 days after receipt of the goods, hidden defects immediately, but no later than within 7 days after their discovery. If the buyer omits the inspection or the formal and timely notification, the buyer is not entitled to any claims for defects. For the punctuality of the advertisement, the time of its receipt by us is decisive.
7.2 If an acceptance or an initial sample test has been agreed, a complaint about defects that the buyer could have identified with careful acceptance or an initial sample test is excluded.
7.3 In the case of justified notices of defects, we are obliged to choose between supplementary performance either by supplying replacement goods free of defects or by rectification, whereby the parts complained about become our property. We are entitled to refuse supplementary performance in accordance with the statutory provisions.
7.4 If we do not comply with the obligation to provide subsequent performance, the buyer can choose to withdraw from the contract or reduce the price after giving us a reasonable grace period, unless this is dispensable under the statutory provisions. In the event of withdrawal, the buyer is liable for deterioration, loss and non-utilization not only for his own customary care, but for every responsibility.
7.5 Further claims for damages and reimbursement of expenses by the buyer due to or in connection with defects or consequential damages, regardless of the legal reason, only exist in accordance with the provisions in Section 8. In this case, however, we are only liable for typical and foreseeable damage.
7.6 Our liability for defects does not apply if there are no defects in the goods delivered by us, ie in particular if defects are due to improper use, faulty or negligent treatment, natural wear and tear or intervention by the buyer or third parties in the delivery item.
7.7 Claims for liability for defects against us expire no later than 12 months after delivery of the goods or after acceptance, with the exception of the cases regulated in Section 9.7.
7.8 If the end user of the goods is a consumer, the statutory provisions apply to the statute of limitations for any right of recourse of the buyer against us.
8. Exclusion and limitation of our liability for damages and reimbursement of expenses
8.1 In the event of slight negligence, we shall only be liable for all claims for damages and reimbursement of expenses made against us due to breach of duty for which we are responsible, regardless of the legal reason, in the event of a breach of essential obligations that endangers the purpose of the contract. Apart from that, our liability for slight negligence is excluded.
8.2 In the case of liability according to Section 8.1 and liability without fault, we are only liable for typical and foreseeable damage. The assertion of useless expenses by the buyer is not permitted.
8.3 In the event of slight negligence, we are only liable for damage caused by delay up to 5% of the net order value.
8.4 The purchaser decides independently on the use of the goods or other services supplied by us. Unless we have confirmed in writing the specific properties and suitability of the products for a contractually specified purpose, advice on application technology is non-binding in any case. We are also only liable in accordance with Section 8.1 for advice given or not given that does not relate to the properties and usability of the delivered product.
8.5 The exclusion of liability according to Sections 8.1 - 8.4 applies to the same extent in favor of our organs, legal representatives, executive and non-executive employees and other vicarious agents.
8.6 All claims for damages and reimbursement of expenses against us expire 12 months after delivery of the goods, in the case of tortious liability from knowledge or grossly negligent ignorance of the circumstances giving rise to the claim or the person liable for compensation. This does not apply in the case of intent and in the cases mentioned in Section 8.7. The provisions of Sections 8.1 - 8.6 and Section 7.7 do not apply in the case of strict liability, if there is liability for injury to life, limb or health, if a quality guarantee is assumed or in the case of fraudulent concealment of a defect.
9. Export Control
We would like to point out to the buyer that for the shipment/export of goods (goods, software, technology) and for the provision of services (e.g. assembly, maintenance, servicing, repairs, instructions/training etc.) with a cross-border connection European and German foreign trade law applies to the fulfillment of the contractual obligation and that the individual deliveries and technical services may be subject to export control restrictions and prohibitions. This applies in particular to so-called armaments and dual-use goods. The relevant legal provisions are Regulation (EC) No. 428/2009 (EC Dual-Use Regulation) and its annexes, the Foreign Trade and Payments Act (AWG), the Foreign Trade and Payments Ordinance (AWV) and their annex (Part I Section A and B of the German export list), in the currently valid versions.
In addition, there are European and national embargo regulations against certain countries and persons, companies and organizations that can prohibit the delivery, provision, transfer, export or sale of goods and the performance of services or make them subject to approval.
The buyer acknowledges that the above legal provisions are subject to constant changes and adjustments and are to be applied to the contract in their currently valid version.
The buyer undertakes to recognize and comply with the European and German export control regulations and embargo regulations, especially if the buyer is affected by a re-export requirement of a license issued to us by the export control authority. At the latest before shipment/export, we will inform the buyer of a corresponding requirement.
The buyer also undertakes not to sell, export, re-export, deliver, pass on or otherwise make available the delivered goods, directly or indirectly, directly or indirectly to persons, companies, institutions, organizations or countries, provided that this violates violates European or German export regulations or embargo regulations.
Upon request, the buyer is obliged to provide us with appropriate and complete information about the end use of the goods or services to be delivered, in particular to issue so-called end-use documents (EUCs) and send them to us in the original, in order to determine the end-use and intended use of the goods to be delivered or services and to be able to provide evidence to the competent export control authority.
9.2 Withdrawal, compensation by us
If the necessary export or transfer licenses or other foreign trade permits or releases are not issued by the responsible authorities or not in good time, or if there are other obstacles due to the customs, foreign trade regulations to be observed by us as the exporter or transferor or by our suppliers and embargo regulations prevent the fulfillment of the contract or the delivery, we are entitled in addition to Section 3 to withdraw from the contract or from the individual delivery or service obligation. This also applies if corresponding obstacles under export control and embargo law - e.g. B. due to a change in the legal situation - and make it temporarily or permanently impossible to carry out the delivery or service because the necessary export or transfer permits or other foreign trade permits or approvals are not issued or revoked by the responsible authorities or other legal obstacles prevent the fulfillment of the contract or the delivery or service due to customs, foreign trade and embargo regulations to be observed.
Any claims for damages by the buyer for this reason shall apply Numeral 8.
9.3 Delivery times
Adherence to delivery times may require the release or issuance of export or transfer permits or other permits under foreign trade law by the responsible authorities. If we are prevented from timely delivery due to the duration of the proper implementation of a customs or foreign trade law application, approval or examination procedure, the delivery time is extended appropriately by the duration of the delay caused by this official procedure. The regulations in Section 3 remain unaffected.
9.4 compensation by the buyer
The buyer is fully liable to us for damages and expenses that we incur as a result of culpable non-compliance with European and/or German export regulations or embargo regulations by the buyer.
10. Property Rights
10.1 If the goods are manufactured according to the buyer's specifications and third-party property rights are violated as a result, the buyer shall indemnify us from all third-party claims due to the violation of property rights.
10.2 If the buyer violates the contract, his property rights do not prevent us from using the goods in accordance with the contract.
11. Data protection, Schufa clause
11.2 The buyer's personal data are collected, processed and stored in accordance with the provisions of the Federal Data Protection Act.
11.3 We reserve the right to obtain information for the purpose of a credit check from the SCHUFA company (protection association for general credit security) responsible for the buyer's place of residence or from another credit agency. Furthermore, we reserve the right to report payment experiences to credit agencies in accordance with the provisions of the BDSG.
12. Place of performance, place of jurisdiction and law
12.1 The place of performance for the delivery is the location of the company or warehouse from which the delivery is made.
12.2 Place of jurisdiction is Lindau. However, we are also entitled to sue the buyer at his general place of jurisdiction.
12.3 The contract is subject to the laws of the Federal Republic of Germany.
12.4 If the buyer is based outside of Germany, the CISG ("UN Sales Convention") applies with the following special rules:
12.5 The most recent version of INCOTERMS (currently Incoterms® 2020) applies to the interpretation of agreed delivery clauses, without prejudice to the provision made in Section 5 for the transfer of risk.
13. Partial Invalidity
In the event of the ineffectiveness of individual contractual conditions, the remaining provisions remain fully effective. Instead of invalid provisions, such a regulation shall apply without further ado, which comes as close as possible within the scope of what is legally possible to what was economically intended according to the meaning and purpose of the invalid clause.
14. Priority German Version
These general terms and conditions of sale should be interpreted according to German legal understanding. If the legal meaning of a translation differs from the German legal meaning, the German meaning shall prevail.
Represented by the IT law firm
widmann solutions gmbh
Phone: +49 (0) 8382-27 57 44-0
Fax: +49 (0) 8382-27 57 44-99
Registration court: district court Kempten
Registration number: HRB 11100
BIC / Swift: BYLADEM1MLM
IBAN: DE08 7315 0000 1001 3831 22
DUNS ® No.: 342199147