General Terms and Conditions of Sale (as of 1/2021)
I. Scope
1. Our Terms and Conditions of Sale apply exclusively. We do not recognise any of the customer’s terms and conditions 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 also apply if we deliver to the customer without reservation, despite being aware of the customer’s conflicting or deviating terms and conditions.
2. All agreements concluded 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 apply exclusively to businesses as defined in § 310(1) of the German Civil Code (BGB).
4. Our Terms And Conditions Of Delivery And Payment shall also apply to all future transactions with the customer.
II. Offers – offer documents
1. If the order qualifies as an offer pursuant to § 145 BGB, we are entitled to accept it within two weeks.
2. We hereby reserve all property rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to written materials marked as “confidential”. The customer may not share said materials with third parties without our express written consent.
3. We reserve the right to make technical changes as well as changes to the shape, colour and/or weight of our products, within the scope of what is reasonable.
III. Prices – terms of payment
1. Unless otherwise specified in the order confirmation, our prices are “ex works”, excluding packaging, which is invoiced separately.
2. Statutory value-added tax (VAT) is not included in our prices; it will be shown separately on the invoice at the applicable rate on the date of invoicing.
3. Cash discounts require a separate written agreement.
4. Unless otherwise specified in the order confirmation, the purchase price is payable net (without deductions) within 30 days from the invoice date. The statutory regulations regarding the consequences of default of payment shall apply.
5. The customer shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been recognised by us. Furthermore, the customer is only authorised to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.
IV. Delivery times
1. The delivery period specified by us shall not commence until all questions of a technical nature have been clarified.
2. Furthermore, compliance with our delivery obligations shall depend on the timely and proper fulfilment of the customer’s obligations. We reserve the right to invoke the defence of non-performance of the Contract.
3. If the customer is in default of acceptance or culpably violates its other duties to cooperate, we shall be entitled to claim compensation for the damage incurred by us, including any additional expenses. We reserve the right to assert further claims or rights.
4. If the conditions in Clause 3 are met, the risk of accidental loss or accidental deterioration of the purchased goods shall pass to the customer at the point in time at which the customer falls into default of acceptance or debtor’s default.
5. We shall be liable in accordance with the statutory provisions if the underlying purchase contract qualifies as a fixed transaction within the meaning of § 286(2) No. 4 BGB or § 376 HGB. We shall also be liable under the statutory provisions if, as a result of a delay in delivery for which we are responsible, the customer is entitled to claim that their interest in the continued performance of the contract has ceased.
6. Furthermore, we shall be liable under the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible. Any fault of our representatives or vicarious agents is attributable to us. If the delay in delivery arises due to a grossly negligent breach of contract attributable to us, our liability for damages shall be limited to foreseeable and typically occurring losses.
7. We shall also be liable under the statutory provisions if the delay in delivery is due to the culpable breach of a material contractual obligation. In this case, however, our liability for damages shall be limited to foreseeable and typically occurring losses.
8. In all other cases of delay in delivery, we shall be liable for each completed week of the delay in the form of liquidated damages amounting to 0.5% of the delivery value, whereby the total damages shall not exceed 5% of the delivery value.
9. The customer’s right to assert further legal claims and rights shall remain unaffected.
V. Transfer of risk – packaging costs
1. Unless otherwise specified in the order confirmation, delivery is agreed as “ex works”.
2. Separate agreements apply for the return of packaging.
3. At the customer’s request, we will arrange transport insurance for the delivery. The costs incurred in this regard shall be borne by the customer.
VI. Liability for defects
1. The customer can only assert claims for defects if it has duly fulfilled its obligations to inspect the goods and report defects pursuant to § 377 HGB. Furthermore, it is incumbent upon the customer to inspect the purchased item again at the place of intended use prior to installation.
2. Where a defect in the purchased goods exists that must have already been present at the time of the transfer of benefits and risks, and is not attributable to installation errors, we shall be entitled, at our discretion, either to provide a replacement delivery or issue a credit note equal to the purchase price. In the case of replacements, the Supplier reserves the right to supply deviating products due to technical progress.
3. If the supplementary performance fails, the customer shall be entitled, at its discretion, to withdraw from the Contract or demand a reduction in price.
4. Compensation for installation and removal costs is excluded if the costs incurred were either unnecessary or disproportionate. The burden of proof in this regard rests with the customer. The customer must submit a cost estimate before the work is carried out and must coordinate the execution of the work with us.
5. We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Unless an intentional breach of contract is attributable to us, our liability for damages shall be limited to foreseeable, typically occurring losses.
6. We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation. In this case, our liability for damages shall also be limited to foreseeable, typically occurring losses. Material contractual obligations are those that characterise the contract and on which the customer is entitled to rely.
7. Liability for culpable injury to life, body or health remains unaffected; this also applies to mandatory liability under the German Product Liability Act (Produkthaftungsgesetz).
8. We accept no liability except as expressly described above.
9. The limitation period for claims for defects is 12 months, starting from the transfer of risk.
10. The limitation period for recourse claims under §§ 478, 479 BGB remains unaffected; it is five years from the delivery of the defective goods.
VII. General liability
1. Any liability for damages exceeding what is outlined in Section VI is excluded, regardless of the legal basis for the claim. In particular, this exclusion applies to claims for damages due to pre-contractual fault, other breaches of duty, or tortious claims for compensation for property damage under § 823 BGB. 2. The limitation outlined in Clause 1 also applies if the customer claims compensation for futile expenses instead of damages in lieu of performance.
3. To the extent that our liability for damages is excluded or limited, this exclusion or limitation also applies with regard to the personal liability of our employees, workers, staff members, representatives and vicarious agents.
VIII. Retention of title
1. We shall retain ownership of the purchased goods pending receipt of all payments arising from the business relationship with the customer. In the event of a breach of contract by the customer; in particular, in cases of default of payment, we shall be entitled to reclaim the purchased goods. Reclamation of the goods shall constitute a withdrawal from the contract. Having reclaimed the goods, we shall be authorised to sell the goods, whereby the proceeds from the sale shall be credited against the customer’s liabilities, less reasonable costs incurred in the sale.
2. The customer is obligated to handle the purchased goods with care. In particular, the customer must, at its own expense, sufficiently insure the goods at their new value against damage caused by fire, water and theft. The customer must also carry out any required maintenance and inspection work at its own expense and in a timely manner.
3. In the event of seizures or other third-party interventions, the customer must notify us immediately in writing so that we can file a claim under § 771 of the German Code of Civil Procedure (ZPO). If the third party is unable to reimburse us for the judicial and extrajudicial costs of a claim under § 771 ZPO, the customer shall be liable for our losses so incurred.
4. The customer is entitled to resell the purchased goods in the ordinary course of business. However, the customer hereby assigns to us all claims in the amount of the final invoice amount (including VAT) accruing to it from the resale to its customers or third parties, irrespective of whether the purchased goods are resold as is or after further processing. The customer shall remain authorised to collect these claims even after the assignment. Our authority to collect the claims ourselves remains unaffected. However, we shall not collect the claims as long as the customer uses the accrued proceeds to meet its payment obligations, is not in default of payment and, in particular, provided that no application for the opening of composition or insolvency proceedings has been filed or there is no cessation of payments. However, should this be the case, we may require the customer to disclose the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment.
5. In all cases, any processing or transformation of the purchased goods by the customer is carried out on our behalf. If the purchased goods are processed with other items not owned by us, we shall acquire co-ownership of the new item on a pro-rata basis. Our share shall be determined by the value of the purchased goods (final invoice amount, including VAT) in proportion to the value of the other processed items at the time of the processing. In all other respects, the item resulting from the processing shall give rise to the same obligations as the purchased goods delivered under reservation of title.
6. If the purchased goods are inseparably mixed with other items not owned by us, we shall acquire co-ownership of the new item on a pro-rata basis. Our share shall be determined by the value of the purchased goods (final invoice amount, including VAT) in proportion to the value of the other mixed items at the time they were mixed. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it is deemed agreed that the customer shall transfer co-ownership of said item to us on a pro-rata basis. The customer shall keep the resulting solely or jointly owned goods in safe custody for us.
7. In addition, the customer hereby assigns to us any claims arising against a third party from the integration of the purchased goods into real property, as security for our claims against the customer.
8. At the customer’s request, we shall release the securities to which we are entitled, provided that the realisable value of our securities exceeds the claims to be secured by more than 10%. In this case, we reserve the right to select which securities will be released.
IX. Place of jurisdiction – place of performance
1. If the customer is a merchant, the place of jurisdiction is Tettnang. However, we are also entitled to initiate legal proceedings against the customer at the court of their domicile.
2. The laws of the Federal Republic of Germany shall apply, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
3. Unless otherwise specified in the order confirmation, the place of performance is Tettnang.