Terms of Service
General terms of sale and delivery
§ 1 General, Scope
(1) The present general terms and conditions of sale and delivery (hereinafter: "AVLB") apply to all of our business relationships with us as the contractor / seller (hereinafter: "AN") and our customers as the client / AG (hereinafter: "AG"). The AVLB only apply if the AG is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The AVLB apply in particular to contracts for the sale and / or delivery of movable objects (hereinafter also: "goods"), regardless of whether the contractor manufactures the goods himself or purchases them from suppliers (§§ 433, 651 BGB) and whether assembly services are part of the contract. The current version of the AVLB also applies as a framework agreement for future contracts for the sale and / or delivery of movable objects with the same AG, without the AN having to refer to them again in each individual case; In this case, the AN will immediately inform the AG of any changes to its AVLB.
(3) The GTS of the Contractor apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the AG will only become part of the contract if and to the extent that the AN has expressly agreed to their validity. This requirement of consent applies in any case, for example even if the contractor, knowing the general terms and conditions of the client, carries out the delivery to him without reservation.
(4) Individual agreements made with the client on a case-by-case basis (including ancillary agreements, additions and changes) always take precedence over these GTS. A written contract or our written confirmation is authoritative for the content of such agreements.
(5) Legally relevant declarations and notifications which the AG must submit to the AN after the contract is concluded (e.g. setting of deadlines, notifications of defects, declarations of withdrawal or reduction in price) must be made in writing to be effective.
(6) References to the validity of statutory provisions are only used for clarification purposes. Even without such a clarification, the statutory provisions apply, unless they are directly amended or expressly excluded in these AVLB.
§ 2 conclusion of contract
(1) Offers by the AN are subject to change and non-binding. This also applies if the AN has provided the AG with catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - for which the AN reserves property rights and copyrights.
(2) The order of the goods by the client is considered a binding contract offer. Unless otherwise stated in the order, the contractor is entitled to accept this contract offer within 4 weeks of its receipt.
(3) The acceptance can either be declared in writing (e.g. by order confirmation) or by delivery of the goods to the client.
§ 3 Delivery Period and Delay in Delivery
(1) The delivery period is agreed individually or specified by the contractor when accepting the order. If this is not the case, the delivery period is approx. 4 weeks from the conclusion of the contract.
(2) If the AN cannot meet binding delivery deadlines for reasons for which the AN is not responsible (unavailability of the service), the AN will inform the AG about this immediately and at the same time notify the expected new delivery deadline. If the service is not available within the new delivery period either, the contractor is entitled to withdraw from the contract in whole or in part; Any consideration already provided by the AG will be reimbursed to the AN without delay. A case of unavailability of the service in this sense is particularly the late delivery by its supplier if the contractor has concluded a congruent hedging transaction, neither he nor his subcontractor is at fault or the contractor is not obliged to procure in individual cases.
(3) The occurrence of the delay in delivery is determined by the statutory provisions. In any case, however, a reminder from the client is required.
(4) The rights of the AG according to § 8 of these AVLB and the legal rights of the AN, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of the service and / or subsequent performance) remain unaffected.
§ 4 delivery, transfer of risk, acceptance, default in acceptance
(1) Delivery takes place ex warehouse, which is also the place of performance. At the request and expense of the client, the goods will be sent to a different destination (sale by mail order). Unless otherwise agreed, the Contractor is entitled to determine the type of shipment (in particular the transport company, shipping route, packaging) himself.
(2) The risk of accidental loss and accidental deterioration of the goods is transferred to the client at the latest upon handover. In the case of sale by mail order, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay are transferred to the freight forwarder, the carrier or the person or institution otherwise assigned to carry out the shipment. If acceptance has been agreed, this is decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services also apply accordingly to an agreed acceptance. The regulations of §§ 377, 381 HGB remain unaffected. The handover or acceptance is the same if the client is in default of acceptance.
(3) If the AG is in default of acceptance, if it fails to cooperate or if the delivery is delayed for other reasons for which the AG is responsible, the AN is entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this, the contractor calculates a flat rate compensation amounting to 0.5% of the net delivery value per calendar week, max. 5% starting with the delivery period or - in the absence of a delivery period - with notification of the readiness for dispatch of the goods. Proof of higher damage and the contractor's statutory claims (in particular reimbursement of additional expenses, appropriate compensation, termination) remain unaffected; however, the lump sum is to be offset against further monetary claims. The client is allowed to prove that the contractor suffered no damage at all or only significantly less damage than the above flat rate.
§ 5 prices and terms of payment
(1) Unless otherwise agreed in individual cases, the current prices of the contractor at the time of the conclusion of the contract apply, ex warehouse, plus statutory sales tax.
(2) In the case of sale by mail order (Section 4 (1)), the AG bears the transport costs from the warehouse and the costs of any transport insurance requested by the AG. If the contractor does not invoice the transport costs actually incurred in individual cases, a flat-rate transport cost (excluding transport insurance), staggered according to weight and distance, shall apply as agreed. Any customs duties, fees, taxes and other public charges are borne by the AG. The contractor does not take back transport and all other packaging in accordance with the packaging ordinance, they become the property of the client; Exchange pallets are excluded.
(3) The remuneration is due and, unless otherwise agreed in individual cases, to be paid within 10 days of invoicing and delivery or acceptance of the goods.
(4) Upon expiry of the above payment deadline, the client is in default. Interest is to be paid on the remuneration during the period of default at the applicable statutory default interest rate. The contractor reserves the right to assert further damage caused by default. The contractor's claim to commercial maturity interest (§ 353 HGB) against merchants remains unaffected.
(5) The client is only entitled to set-off or retention rights insofar as its claim has been legally established or is undisputed. In the event of defects in the delivery, the counterclaims of the client, in particular in accordance with Section 7 (6) sentence 2 of these AVLB, remain unaffected.
(6) If, after the conclusion of the contract, it becomes apparent that the contractor's claim to remuneration is jeopardized by the CL’s inability to perform (e.g. due to an application to open insolvency proceedings), then the contractor is obliged to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - entitled to withdraw from the contract (§ 321 BGB). In the case of contracts for the production of non-justifiable items (custom-made items), the contractor can declare his withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.
§ 6 retention of title
(1) The Contractor reserves ownership of the goods sold until all of his current and future claims from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
(2) The goods subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full. The AG must immediately notify the AN in writing if and to the extent that third parties access the goods belonging to the AN.
(3) In the event of breach of contract by the AG, in particular if the remuneration due is not paid, the AN is entitled to withdraw from the contract in accordance with the statutory provisions and / and to demand the return of the goods on the basis of the retention of title. The request for surrender does not also include the declaration of withdrawal; rather, the contractor is entitled to only demand the goods and to reserve the right to withdraw. If the AG does not pay the due remuneration, the AN may only assert these rights if the AN has previously unsuccessfully set the AG a reasonable deadline for payment or if such a deadline is dispensable according to the statutory provisions.
(4) The AG is authorized to resell and / or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions also apply.
(a) The retention of title extends to the full value of the products resulting from the processing, mixing or combining of our goods, whereby the contractor is deemed to be the manufacturer. If the ownership rights of third parties remain in the event of processing, mixing or combining with goods of third parties, the contractor shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
(b) Any claims against third parties arising from the resale of the goods or products are already assigned to the AG as security in their entirety or in the amount of the possible co-ownership share in accordance with the preceding paragraph. The contractor accepts the assignment. The obligations of the client named in Paragraph 2 also apply with regard to the assigned claims.
(c) In addition to the AN, the AG remains authorized to collect the claim. The AN undertakes not to collect the claim as long as the AG fulfills its payment obligations towards it, does not fall into arrears, has not submitted an application to open insolvency proceedings and there is no other shortcoming in its performance. If this is the case, however, the AN can demand that the AG notify him of the assigned claims and their debtors, provide all information required for collection, hand over the associated documents and notify the debtors (third parties) of the assignment.
(d) If the realizable value of the collateral exceeds the claims of the contractor by more than 10%, the contractor will
Release the client's request for securities at his discretion.
§ 7 Claims for defects by the client
(1) The statutory provisions apply to the rights of the client in the event of material defects and defects of title (including incorrect and short deliveries as well as improper assembly or inadequate assembly instructions), unless otherwise specified below. In all cases, the special statutory provisions remain unaffected for the final delivery of the goods to a consumer (supplier recourse is welcome. §§ 478, 479 BGB).
(2) The basis of liability for defects is primarily the agreement made on the quality of the goods. All product descriptions that are the subject of the individual contract are deemed to be an agreement on the quality of the goods; it makes no difference whether the product description comes from the client, the manufacturer or the contractor.
(3) Insofar as the quality has not been agreed, the statutory regulation must be used to assess whether or not there is a defect (Section 434 Paragraph 1 S 2 and 3 BGB). However, the contractor assumes no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
(4) The customer's claims for defects require that he has complied with his statutory inspection and notification obligations (§§ 377, 381 HGB). If a defect becomes apparent during the examination or later, the contractor must be notified of this in writing without delay. The notification is deemed to be immediate if it is made within 5 days, with timely sending of the notification being sufficient to meet the deadline. Irrespective of this duty to inspect and notify, the client must report obvious defects (including incorrect and short deliveries) in writing within two weeks of delivery, with the timely sending of the notification being sufficient to meet the deadline. In the case of an agreed acceptance, the acceptance is the relevant point in time within the meaning of Section 377 (1) of the German Commercial Code (HGB). If the AG fails to properly examine and / or notify the defect, the AN shall not be liable for the defect that has not been reported.
(5) If the delivered item is defective, the contractor can initially choose whether to provide supplementary performance by eliminating the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). His right to refuse supplementary performance under the legal requirements remains unaffected.
(6) The AN is entitled to make the subsequent performance owed dependent on the AG paying the remuneration due. However, the client is entitled to withhold a portion of the remuneration that is appropriate in relation to the defect.
(7) The AG must give the AN the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the case of a replacement delivery, the AG must return the defective item to the AN in accordance with the statutory provisions. The supplementary performance includes neither the removal of the defective item nor the re-installation if the contractor was not originally obliged to install it.
(8) The expenses required for the inspection and subsequent performance, in particular transport, travel, labor and material costs (not: dismantling and installation costs), are borne by the contractor if there is actually a defect. However, if the AG's request for the rectification of defects turns out to be unjustified, the AN can demand that the AG reimburse the costs incurred as a result.
(9) In urgent cases, e.g. B. in the event of a risk to operational safety or to avert disproportionate damage, the AG has the right to remedy the defect itself and to demand reimbursement of the objectively necessary expenses from the AN. The contractor is to be notified immediately of any such self-improvement, if possible in advance. The right to carry out the work does not exist if the contractor would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
(10) If the supplementary performance has failed or a reasonable deadline to be set by the AG for the supplementary performance has expired without success or is dispensable according to the statutory provisions, the AG can withdraw from the purchase contract or reduce the remuneration. In a minor defect, however, there is no right of withdrawal.
(11) The client's claims for damages or reimbursement of wasted expenses only exist in accordance with Section 8 and are otherwise excluded.
§ 8 Other liability
(1) Unless otherwise stated in these GTS including the following provisions, the Contractor shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) The contractor is liable for damages - irrespective of the legal reason - in the event of willful intent and gross negligence. In the event of simple negligence, the contractor is only liable
(a) for damage resulting from injury to life, limb or health, (b) for damage resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on which the contractual partner regularly relies and may trust) as far as the achievement of the contractual purpose is endangered by the breach; in this case, however, his liability is limited to compensation for the foreseeable, typically occurring damage. Liability for the slightly negligent breach of insignificant contractual obligations is otherwise excluded.
(3) The limitations of liability resulting from Paragraph 2 do not apply if the Contractor fraudulently concealed a defect or assumed a guarantee for the quality of the goods. The same applies to claims of the client under the Product Liability Act.
(4) Due to a breach of duty that does not consist of a defect, the client can only withdraw or terminate if the contractor is responsible for the breach of duty. A free right of termination of the AG (in particular according to §§ 651, 649 BGB) is excluded. In addition, the legal requirements and legal consequences apply.
§ 9 Limitation (1) In deviation from § 438 Paragraph 1 No. 3 BGB, the general limitation period for claims arising from material and legal defects is one year from delivery. If an acceptance has been agreed, the statute of limitations begins with the acceptance.
(2) However, if the goods are a building or an item that has been used for a building in accordance with its normal use and has caused its defectiveness (building material), the statute of limitations is 5 years from delivery (§ 438 para. 1 no. 2 BGB). This does not affect any special legal regulations for third-party claims in rem for surrender (Section 438 (1) No. 1 BGB), in the event of malice on the part of the seller (Section 438 (3) BGB) and for claims in supplier recourse in the event of final delivery to a consumer (Section 479 BGB).
(3) The above limitation periods of the sales law also apply to contractual and non-contractual claims for damages by the AG based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195,199 BGB) would lead to a shorter limitation period in individual cases. The limitation of the product liability law remain unaffected in any case. Otherwise, only the statutory limitation periods apply to claims for damages by the client in accordance with Section 8.
§ 10 Choice of law and place of jurisdiction
(1) For these AVLB and all legal relationships between the AN and the AG, the law of the Federal Republic of Germany applies to the exclusion of uniform international law, in particular the UN sales law. Requirements and effects of the retention of title according to § 6 are subject to the law of the respective storage location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective.
(2) If the AG is a merchant within the meaning of the Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is, at the option of the AN, the registered office of the AN Stuttgart. However, the contractor is also entitled to take legal action at the general place of jurisdiction of the client.
§ 11 Severability Clause
Should a provision in these General Terms and Conditions of Sale and Delivery or a provision in the context of other agreements be or become ineffective, this shall not affect the validity of all other provisions or agreements.