General Terms and Conditions
§ 1 General – Scope of application
(1) Our Terms and Conditions of Sale shall apply exclusively; we do not recognize any terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our Terms and Conditions of Sale.
(2) All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
(3) Our Terms and Conditions of Sale shall only apply to entrepreneurs within the meaning of Section 310(1) BGB.
§2 Offer – Offer documents
(1) If the order is to be qualified as an offer in accordance with § 145 BGB, we can accept this within two weeks.
(2) We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents. This shall also apply to such written documents that are designated as “confidential”. The customer requires our express written consent before passing them on to third parties.
§3 Prices – Terms of payment
(1) Unless otherwise stated in the order confirmation, our prices are “ex works”, excluding packaging; this will be invoiced separately.
(2) The statutory value added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing.
(3) The deduction of a discount requires a special written agreement.
(4) Unless otherwise stated in the order confirmation, the purchase price is due for payment net (without deduction) within 30 days of the invoice date. The statutory provisions regarding the consequences of default of payment shall apply.
(5) The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognized by us. Furthermore, the customer is only authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
§4 Delivery time and delay in delivery
(1) Binding delivery dates and deadlines must be expressly agreed in writing. In the case of non-binding or approximate (approximate, etc.) delivery dates and periods, we shall endeavor to comply with these to the best of our ability.
(2) Delivery and/or performance periods shall commence upon receipt of our order confirmation by the customer, but not before all economic, technical and logistical details of the execution of the order have been fully clarified between the customer and us and all other prerequisites for the delivery/service to be fulfilled by the customer have been fully met, in particular agreed down payments or securities and necessary cooperation services have been fully provided by the customer. The same applies to delivery and/or service deadlines. If the customer has requested changes after placing the order, a new reasonable delivery/service period shall commence upon confirmation of the change by us. A reasonable delivery period/performance period is one which takes into account the preparatory actions required to establish readiness for delivery/performance as a result of the change – e.g. in the form of procurements or subcontractor deliveries – in addition to the remaining delivery period/performance period.
(3) Deliveries before expiry of the delivery period are permissible. The day of delivery shall be the day of notification of readiness for dispatch in the case of an obligation to be collected, the day of dispatch of the products in the case of an obligation to be shipped, and the day of delivery to the agreed place of delivery in the case of an obligation to be delivered.
(4) Unless otherwise agreed in writing, the customer’s interest in our performance shall only lapse if we fail to deliver essential parts or deliver them late.
(5) If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims or rights are reserved.
(6) If the conditions of paragraph (5) are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.
(7) If we are in default of delivery, the customer must first set us a reasonable grace period of at least – unless unreasonable – 14 working days for performance. If this expires without result, claims for damages for breach of duty – for whatever reason – shall only exist in accordance with the provision in § 7 of these General Terms and Conditions of Sale.
§5 Transfer of risk – packaging costs
(1) Unless otherwise stated in the order confirmation, delivery is agreed “ex works”.
(2) Separate agreements apply to the return of packaging.
(3) If the customer so wishes, we will cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the customer.
§6 Liability for defects
(1) Claims for defects by the customer presuppose that the customer has properly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 HGB.
(2) Insofar as the purchased item is defective, we provide a warranty – unless expressly agreed otherwise – for a period of twelve months, calculated from the date of transfer of risk, in the case of the customer’s refusal to accept or take delivery from the date of receipt of the notification of readiness for acceptance of the goods by the user. This does not apply to claims for damages arising from a guarantee, the assumption of a procurement risk within the meaning of § 276 BGB, claims due to injury to life, limb or health, fraudulent, intentional or grossly negligent action on our part, or if in the cases of § 478 BGB (recourse in the supply chain with consumers as end customers), § 438 para. 1 No. 2 BGB (construction of buildings and delivery of items for buildings) and § 634 Para. 1 No. 2 BGB (construction defects) or if a longer limitation period is otherwise stipulated by law. § Section 305b BGB (precedence of the individual agreement) remains unaffected. A reversal of the burden of proof is not associated with the above provision.
(3) Our warranty (claims arising from breach of duty in the form of defective performance in the event of material defects) and the resulting liability shall be excluded insofar as defects and associated damage are not demonstrably based on defective material, defective design, defective workmanship, defective manufacturing materials or, insofar as owed, defective instructions for use. In particular, the warranty and the resulting liability due to material defects is excluded for the consequences of incorrect use (this includes in particular improper cleaning in accordance with the operating instructions), unsuitable storage conditions, and for the consequences of chemical, electromagnetic, mechanical or electrolytic influences that do not correspond to the average standard influences provided for in our product description or a deviating product specification or the respective product-specific data sheet on our part. The above shall not apply in the event of fraudulent, grossly negligent or intentional action on our part, or injury to life, limb or health, the assumption of a guarantee, a procurement risk in accordance with Section 276 BGB or liability in accordance with a mandatory statutory liability situation. Claims for defects shall not exist in the event of only insignificant deviations from the agreed or customary quality or usability. If the customer or a third party improperly repairs the delivered products, we shall not be liable for the resulting consequences.
(4) The acknowledgement of breaches of duty in the form of material defects must always be made in writing. § Section 305b BGB (priority of the individual agreement) remains unaffected.
(5) Further claims of the customer due to or in connection with defects or consequential damage caused by a defect, for whatever reason, shall only exist in accordance with the provisions of § 7 of these General Terms and Conditions of Sale.
§7 Exclusion and limitation of liability
(1) Subject to the following exceptions, we shall not be liable, in particular not for claims of the customer for damages or reimbursement of expenses – irrespective of the legal grounds – in the event of breach of obligations arising from the contractual relationship.
(2) The above exclusion of liability in accordance with. Para. 1 shall not apply: For own intentional or grossly negligent breach of duty and intentional or grossly negligent breach of duty by legal representatives or vicarious agents; for the breach of essential contractual obligations; “essential contractual obligations” are those whose fulfillment characterizes the contract and on which the customer may rely; in the event of injury to life, limb and health also by legal representatives or vicarious agents; in the event of default, insofar as a fixed delivery and/or fixed performance date was agreed; insofar as we have assumed a guarantee for the quality of our goods or the existence of a performance result or a procurement risk within the meaning of Section 276 BGB; in the event of mandatory statutory liability, in particular the Product Liability Act.
(3) In the event that we or our vicarious agents are only guilty of slight negligence and there is no case of the above paragraph 2, 4th, 5th and 6th indents, we shall only be liable for the foreseeable damage typical of the contract, even in the event of a breach of a material contractual obligation.
(4) Our liability is limited to a liability sum of EUR 50,000.00 for each individual case of damage. This shall not apply if we are guilty of malice, intent or gross negligence, for claims due to injury to life, limb or health and in the case of a claim based on a tortious act or a guarantee or the assumption of a procurement risk in accordance with § 276 8GB or in cases of legally mandatory higher liability. Any further liability is excluded.
(5) The exclusions or limitations of liability in accordance with the above paragraphs 1 to 4 shall apply to the same extent in favor of our executive bodies, our executive and non-executive employees and other vicarious agents as well as our subcontractors.
(6) A reversal of the burden of proof is not associated with the above provisions.
§Section 8 Retention of title
(1) We retain title to the purchased item until all payments from the delivery contract have been received. In the event of breach of contract by the customer, in particular in the event of default of payment, we shall be entitled to take back the purchased item. After taking back the purchased item, we shall be authorized to sell it; the proceeds from the sale shall be offset against the customer’s liabilities – less reasonable selling costs.
(2) The customer is obliged to treat the purchased item with care; in particular, he is obliged to insure it adequately at his own expense against fire, water damage and theft at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense. When carrying out maintenance work, the customer must strictly adhere to the cleaning steps specified in the operating instructions and only use the materials specified in the operating instructions.
(3) In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can file an action in accordance with Section 771 of the German Code of Civil Procedure (ZPO). If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
(4) The customer shall be entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim which accrue to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer shall remain authorized to collect this claim even after the assignment. Our authorization to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed and payments have not been suspended. If this is the case, however, we may demand that the customer informs us of 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) The processing or transformation of the purchased item by the customer shall always be carried out on our behalf. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other processed objects at the time of processing. In all other respects, the same shall apply to the item created by processing as to the purchased item delivered under reservation of title.
(6) If the purchased item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it is agreed that the customer shall transfer co-ownership to us on a pro rata basis. The customer shall keep the resulting sole ownership or co-ownership for us.
(7) The customer shall also assign to us the claims to secure our claims against him which arise against a third party through the connection of the purchased item with a property.
(8) We undertake to release the securities to which we are entitled at the customer’s request to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; we shall be responsible for selecting the securities to be released.
§9 Place of jurisdiction – place of performance
(1) If the customer is a merchant, the place of jurisdiction for all disputes arising from and in connection with this contractual relationship shall be our registered office in Wolfsburg; however, we shall also be entitled to sue the customer at the court of his place of residence.
(2) The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods are expressly excluded.
(3) Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.