Valid from 01/2019
General
Sales Conditions
Scope
Our General Terms and Conditions of Sale apply to all – including future – legal relationships of the contracting parties. Deviating agreements are only valid if they are confirmed by us in writing.
Conflicting or opposing General Terms and Conditions of the contracting partner – hereinafter referred to as the Buyer – do not bind us, even if we do not explicitly object to them.
Our Terms and Conditions of Sale apply only to businesses as defined in § 310 Abs. 1 BGB.
If a provision in our General Terms and Conditions of Sale is or becomes invalid, the validity of all other provisions shall not be affected.
II. Offer/Offer documents
Our offer is non-binding, unless otherwise stated in the offer.
We can accept orders within 6 weeks. The deadline begins with the receipt of the order.
The extent of the delivery or service is governed by our written order confirmation. Assurances of characteristics, additions, or side agreements require written form to be effective.
Our sales staff are not authorized to make verbal side agreements or assurances that go beyond the content of the written contract.
We reserve ownership and copyright rights to illustrations, drawings, calculations, and other documents. Prior to their transfer to third parties, the buyer requires our explicit written consent.
We are entitled to partial deliveries, provided they are reasonable for the buyer.
III. Prices/Payment Terms
Unless otherwise stated in the order confirmation, our prices are "ex warehouse" or "ex works", excluding shipping costs, customs, packaging, and plus the applicable value-added tax.
The minimum order value is €50 net in the European Union and €120 net in non-EU countries.
Market-dependent surcharges for raw materials will be calculated separately at the respective daily prices. Additionally, services beyond the purchase price as well as extra agreed-upon work will be invoiced separately. We also reserve the right to adjust our prices accordingly if cost reductions or increases occur after the conclusion of the contract, particularly due to collective agreements, changes in material prices, or currency fluctuations. We will provide evidence of this to the buyer upon request.
The deduction of discounts requires a special written agreement. Unless otherwise stated in the order confirmation, the purchase price is net (without deduction) and becomes due for payment within o days from the invoice date. For partial deliveries, partial invoices will be issued. The payment deadlines for each partial invoice run separately. The statutory regulations regarding payment delays shall apply. Discounts become void and payments are immediately due if a payment delay exists for another delivery or service. This also applies in the case of an out-of-court settlement or court insolvency proceedings from the time of application.
We only accept bills of exchange or checks as fulfillment of payment, but not as a substitute for performance by special agreement. Our claim is only fulfilled on the day we can dispose of the equivalent value without expecting claims for chargebacks. Collection costs, discount and exchange fees, as well as interest, are always borne by the buyer and are due for immediate payment.
The buyer may only offset against an undisputed or legally established claim. A right of retention may only be exercised to the extent that the counterclaim is based on the same contractual relationship.
One-time costs, such as tool and development costs, will be charged at 50% immediately upon receipt of the order. The remaining 50% will be due upon delivery of the first series parts.
IV. Product information/construction changes
We reserve the right to make changes to the construction in the interest of technical progress, provided that these do not entail changes in function.
The buyer is required to describe the conditions under which the delivered goods are to be used, in every respect and comprehensively.
V. Delivery time
Information about delivery times is non-binding unless the delivery date has explicitly been promised as "binding."
The delivery period begins on the day of order confirmation, but not before the provision of documents, approvals, consents to be obtained by the buyer, as well as the receipt of an agreed payment, the opening of a letter of credit to be provided, or proof that an agreed security has been established.
The delivery time is deemed to be met if the goods have left the Zell warehouse under Aichelberg within the delivery period.
If unforeseen obstacles occur that are beyond our control and that we could not avoid despite the due diligence required by the circumstances of the case - regardless of whether they arise with us or with a subcontractor - such as force majeure (e.g., war or natural disasters), delays in the delivery of essential raw materials, or other circumstances for which we are not responsible - we are entitled to withdraw from the supply contract in whole or in part or to extend the delivery time by the duration of the obstacle. The same rights apply to us in the event of strikes and lockouts with us or our suppliers. We will promptly inform our customers about such circumstances.
In the case of delivery delays, the buyer may withdraw from the contract after an unsuccessful expiration of a reasonable grace period; in the case of impossibility of our service, this right is also available to him without a grace period. A grace period of at least 14 days is reasonable, and in the case of custom-made products, at least 1 month. Delivery delay is equivalent to impossibility if delivery does not occur for more than 2 months, or 12 weeks for custom-made products. Claims for damages (including any consequential damages) are excluded without prejudice to paragraph 6; the same applies to reimbursement of expenses.
The liability exclusion regulated under paragraph 5 does not apply if an exclusion or limitation of liability for damages due to injury to life, body, or health is agreed, which is based on an intentional or negligent breach of duty by the user or an intentional or negligent breach of duty by a legal representative or vicarious agent of the user; it also does not apply if an exclusion or limitation of liability for other damages is agreed, which is based on an intentional or grossly negligent breach of duty or vicarious agents of the user.
If a commercial fixed transaction has been agreed, the liability limitations from paragraphs 5 and 6 do not apply; the same applies if the buyer can assert that his interest in the fulfillment of the contract has fallen away due to the delays for which we are responsible.
For call-off orders, we must be informed of the call-offs in such a timely manner that proper production and delivery is possible, but at least 6 weeks before the desired delivery date. Call-off orders must be called off within 12 months from the order, unless other fixed dates have been agreed. If the call-off is not made or is not made in full within 12 months from the order or on the agreed call-off dates, the buyer is in default of acceptance.
If the buyer is in default of acceptance or violates cooperation obligations, we are entitled to demand compensation for the damage we have incurred, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the purchase item passes to the buyer at the time he is in default of acceptance.
VI. Transfer of Risk/Packaging Costs/
Insurance
Upon handover to the carrier or freight forwarder, but no later than upon leaving our premises, the risk of accidental loss and accidental deterioration passes to the buyer. The Incoterms 2000 clause "ex works/ab Werk" (German version) applies.
If handover is delayed due to a circumstance for which the buyer is responsible or at their request, the risk passes to the buyer from the day of notification of readiness for shipment. At the buyer's express written request, we are obliged to insure the goods stored with us at their expense. This also applies in cases where a delivery date has not been explicitly agreed, with the provision that the risk passes to the buyer 7 calendar days after the notification of readiness for shipment.
If the buyer wishes, we will cover the delivery with transport insurance; the associated costs will be borne by the buyer.
Transport and all other packaging in accordance with the Packaging Ordinance will not be taken back. Exceptions are pallets. The buyer is obliged to ensure disposal of the packaging at their own expense.
Delivered items must be accepted by the buyer, even if they have insignificant defects, without prejudice to their rights under
§§ 433 ff BGB.
VII. Retention of Title
Until the full payment of the purchase price including all secondary claims, as well as until the payment of all other claims arising from the business relationship, the delivered goods remain our property. The buyer is not entitled to pledge the goods to third parties or to transfer them as security until then. The buyer keeps the reserved goods without charge for us.
When processing, combining, and mixing the reserved goods with other goods by the buyer, we acquire joint ownership of the new item in proportion to the invoice value of the reserved goods to the totality of the goods. The joint ownership rights arising from this shall be considered reserved goods within the meaning of Section 1.
The buyer is entitled to sell the reserved goods in the ordinary course of business as long as he does not find himself in payment default with our purchase price claims.
The buyer already assigns to us all claims that arise from the resale of the reserved goods against third parties. If the reserved goods are sold after processing, combining, or mixing, the assignment of the claim from the resale shall only apply up to the amount of the value of the reserved goods invoiced by the seller to the buyer. This also applies if the reserved goods are resold together with other goods that also do not belong to the seller.
The buyer is also authorized to collect the claim after the assignment. We can restrict the collection authorization out of justified interest and revoke it for a significant reason, particularly in the event of payment default. We can demand that the buyer informs us of the claims assigned to him and their debtors, provides all necessary information for collection, hands over related documents, and discloses the assignment to his debtor.
We are obliged to release the securities owed to us according to the above provisions at the buyer's request to the extent that their realizable value exceeds the secured claim by 20% or more.
The buyer hereby declares his consent that the persons we have commissioned with the assignment of the reserved goods may enter or access the property or building where the items are located for the purpose of taking back the reserved goods.
The buyer must immediately inform us of any seizure, enforcement, or other interventions by third parties that impair our property rights. The buyer is responsible for the costs incurred for measures to eliminate the interventions by third parties, particularly any intervention proceedings.
VIII. Warranty and Liability
If there is a defect for which we are responsible, we are entitled, at our discretion, to remedy the defect or to deliver a replacement. A prerequisite for this is that it is a non-trivial defect. In the case of remedying the defect, we are obliged to bear the transport, labor, and material costs, to the extent that these do not increase because the delivered goods were transported to a location other than the place of performance. If one or both types of this supplementary performance are impossible or unreasonable, we are entitled to refuse them.
We can refuse supplementary performance as long as the buyer does not fulfill their payment obligations to us to an extent that corresponds to the defect-free part of the performance.
If the remedying of the defect or the replacement delivery does not take place within a reasonable period of time – taking into account our delivery possibilities – or if the remedying and/or replacement delivery fails, the buyer may demand a reduction in the
The buyer's rights regarding defects presuppose that they have properly complied with their inspection and complaint obligations in accordance with Section 377 of the German Commercial Code (HGB).
Unless otherwise stated below (para. 6), any further claims of the buyer, regardless of the legal basis (in particular claims for breach of contractual main and secondary obligations, compensation for expenses except for that under Section 439 of the German Civil Code (BGB), tortious acts, as well as other tortious liability) are excluded; this particularly applies to damages that did not occur to the subject matter of delivery itself and for claims for compensation for lost profits; it also includes claims that do not result from the defects in the purchased item.
The aforementioned provisions also apply in the event of delivery of a different item or a lower quantity.
The liability exclusion regulated in paragraph 4 does not apply if an exclusion or limitation of liability for damages arising from injury to life, body, or health is agreed upon, which is based on an intentional or negligent breach of duty by the user or an intentional or negligent breach of duty by a legal representative or vicarious agent of the user; it also does not apply if an exclusion or limitation of liability for other damages is agreed upon that is based on an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of the user.
If we culpably violate an essential contractual obligation or a “cardinal obligation,” liability is not excluded but limited to the contractually typical, foreseeable damage; otherwise, it is excluded in accordance with paragraph 4.
The exclusion of liability also does not apply in cases where liability for errors in the subject matter of delivery for personal or property damage to privately used items is established according to the Product Liability Act. It also does not apply in the event of assuming a guarantee and promising a property if a defect covered by this triggers our liability. In the case of compensation for expenses, the above applies accordingly.No liability is accepted for damages resulting from unsuitable or improper use, faulty assembly by the buyer or third parties, natural wear and tear, faulty or careless treatment, improper changes or repairs by the buyer or third parties without our prior approval.
Claims for supplementary performance, compensation for damages, and reimbursement of expenses are subject to a limitation period of one year after delivery of the purchased item. This does not apply to an item that has been used for a construction project in accordance with its usual use and whose defective condition has caused; in this case, the limitation period only begins after 5 years.
Claims for reduction and the exercise of a right of withdrawal are excluded as long as the claim for supplementary performance has expired. In the case of paragraph 3, however, the buyer can refuse to pay the purchase price to the extent that they would be entitled to do so due to the withdrawal or reduction; in the case of the exclusion of withdrawal and subsequent refusal to pay, we are entitled to withdraw from the contract.
Claims arising from manufacturer regression remain unaffected by this section.
IX. Liability for Ancillary Obligations
If, due to our fault, the delivered item cannot be used contractually or damage occurs as a result of omitted or erroneous execution of suggestions and consultations before or after the conclusion of the contract, as well as other contractual ancillary obligations, the provisions of sections VIII and X shall apply, excluding further claims by the buyer.
X. Withdrawal of the buyer and any other liability on our part
The following provisions apply to breaches of duty outside of liability for defects and shall neither exclude nor restrict the statutory right of withdrawal. Likewise, any legal or contractual claims we are entitled to shall not be excluded or restricted.
The buyer may withdraw from the contract if the entire performance becomes definitively impossible; the same applies to incompetence. The buyer may also withdraw from the entire contract if, in the case of ordering identical items, the execution of a part of the delivery by number becomes impossible due to our fault and he has no interest in the partial performance; if this is not the case, the buyer can reduce the consideration accordingly; the right of withdrawal does not apply in the case of insignificant breaches of duty.
If there is a delay in performance and the buyer grants us a reasonable period for performance after the delay has been established and this grace period is not adhered to, the buyer is entitled to withdraw. In the case of partial delays in performance, paragraph 1 sentence 2 applies accordingly. If, before delivery, the buyer requests a different execution of the delivery item in any respect, the running of the delivery period is interrupted until the day of notification about the execution and may be extended by the time required for the alternative execution.
The right to withdraw is excluded if the buyer is solely or primarily responsible for the circumstance that entitles him to withdraw, or if the circumstance for which we are responsible occurs at the time of the buyer's delay in acceptance. In the event of impossibility, we retain our claim to consideration in the aforementioned cases in accordance with § 326 paragraph 2 BGB.
Further claims of the buyer – regardless of the legal basis – particularly claims arising from fault in the conclusion of contracts, breach of contractual main and secondary obligations, reimbursement of expenses, unlawful actions as well as other tortious liability are excluded; this particularly applies to damages that did not occur to the delivery item itself as well as claims for compensation for lost profits; claims that do not result from the defectiveness of the purchased item are also included. This does not apply insofar as the cause of damage is based on intent or gross negligence on our part, our legal representatives, or vicarious agents. This also does not apply insofar as it concerns damages from a culpable injury to life, body, or health. Similarly, liability in the event of the assumption of a guarantee is not excluded, provided that a duty breach covered thereby triggers our liability. If we culpably violate an essential contractual obligation or a "cardinal obligation," liability is not excluded but merely limited to the typical, foreseeable damage for the contract.
XI. Final provisions
In dealings with our commercial and business customers, our business address at 73119 Zell unter Aichelberg is considered the place of performance for all claims arising directly or indirectly from the contractual relationship.
The law of the Federal Republic of Germany applies to the legal relationship between the buyer and us. The UN Sales Law (CISG) is expressly excluded. The contract language is German.
If our customer is a merchant or entrepreneur, the place of jurisdiction – also for check and/or bill of exchange claims – is our business address at 73119 Zell unter Aichelberg. However, we are entitled to sue our customers, at our discretion, at their general place of jurisdiction or at the location of a commercial establishment we maintain from which the contract was concluded.
Our customer agrees that we may collect, store, and process goods, order, and personal data in our data processing systems in accordance with the legal provisions. This also includes the transfer of this data to affiliated companies within the meaning of Sections 15 et seq. of the German Stock Corporation Act.
The invalidity of individual contractual provisions does not affect the validity of the remainder of the contract, which is then to be supplemented accordingly. Agreements that deviate from these general delivery and payment conditions must always be confirmed by us in writing; otherwise, they are invalid.