I. Offer and conclusion
Our deliveries and services are provided exclusively on the basis of these terms and conditions. They shall also apply to all future deliveries and services, even if they are not expressly agreed again. Our terms and conditions of business shall be deemed accepted at the latest upon receipt of our goods or services. Any deviating terms and conditions of business or purchase of the customer are hereby expressly rejected.
Our offers are non-binding. All agreements – in particular insofar as they amend these terms and conditions – shall only become legally effective upon our written confirmation.
The illustrations, drawings, brochures, advertising literature, directories etc. relating to our goods and the data contained therein, e.g. on performance, operating costs, technical properties and weight, are only approximate unless they are expressly designated as binding.
We reserve the right to make customary changes to the construction, shape, design and colour, provided that they do not unreasonably affect the customer and provided that they do not affect the usability of the goods.
We reserve our property rights and copyrights to cost estimates, drawings and drafts prepared by us as well as to our mathematical bases. These documents may neither be reproduced nor made accessible to third parties without our consent.
II. Delivery and performance time
The dates and deadlines stated by us shall not be deemed to be firmly agreed. We shall only be liable for the observance of deadlines and dates if we have expressly assumed a guarantee in writing.
If we are in default with a delivery, the principal may withdraw from the contract after he has granted us a reasonable period of grace and this has expired unused. In the event of impossibility, the client shall be entitled to this right in accordance with the statutory provisions without a grace period.
We are not liable for damages due to delay or impossibility. This shall not apply in the case of liability due to intent or gross negligence on our part, on the part of our legal representatives and vicarious agents, or in the case of injury to life, limb or health. In the event of a breach of material contractual obligations, liability shall not be excluded, but shall be limited to the foreseeable damage typical for the contract. In the event of compensation for futile expenses, the above shall apply accordingly.
The delivery period shall be extended by a reasonable period of time due to circumstances for which we are not responsible and which prevent timely or proper delivery, e.g. official measures, riots, strikes, lockouts, lack of labour, energy or means of transport, delays in the delivery of essential raw materials, auxiliary materials or operating materials as well as all cases of force majeure. If the delivery period is exceeded by more than 3 months due to the above circumstances, both contracting parties may withdraw from the contract. Further claims of the client, in particular claims for damages, are excluded.
III. Transfer of risk
The risk shall pass to the principal upon handover to the forwarder or carrier, at the latest upon leaving our warehouse or delivery works, also in the case of deliveries free destination, even if the delivery item is delivered in individual parts or we have assumed other services (e.g. assembly) in addition to the delivery.
If the goods are ready for dispatch and the dispatch or acceptance is delayed for reasons for which we are not responsible, the risk shall pass to the principal upon receipt of the notification of readiness for dispatch. The client shall bear the storage costs incurred during the delay.
In the case of repair work, maintenance and servicing, we shall bear the risk until acceptance by the client. If the client defaults on acceptance, the risk shall pass to him.
IV. Installation and assembly conditions
At the place of delivery or assembly, the customer must create in good time all the conditions necessary for us to be able to perform our services without delay under reasonable working conditions.
If the delivery or the execution of the installation or the commissioning of the plant is delayed because the principal does not fulfil his obligations or does not fulfil them in time, the costs incurred by us as a result shall be reimbursed. These include, in particular, the waiting time of the assembly personnel or the acceptance engineer, additional travel costs and allowances.
During the execution of the work, the client shall provide us with a lockable room for the storage of building materials and tools etc. free of charge.
V. Terms of payment
Unless otherwise agreed, our invoices are payable immediately upon receipt. All payments by the client shall be set off against the oldest claim.
The client shall be in default of payment without further declaration on our part 10 days after the due date if he has not paid. If the principal is in default of payment, he shall pay interest on arrears in the amount of the interest rate charged by our commercial banks for open overdrafts, but at least in the amount of 8 % (5 % for consumers) above the respective base interest rate. We reserve the right to assert higher damages and further statutory claims.
In the event of default on the part of the customer, we shall be entitled, after the fruitless expiry of a grace period set by us with the threat of refusal, to withdraw from the contract, to discontinue the work and to invoice all services rendered to date in accordance with the contract prices.
In the event of payment difficulties on the part of the customer, in particular in the event of default in payment, cheque or bill of exchange proceedings, as well as if justified doubts about the solvency or creditworthiness of the customer arise after conclusion of the contract, we shall be entitled to demand immediate payment of all outstanding invoice amounts from the business relationship and to demand cash payment or provision of security against return of bills of exchange accepted on account of performance or to withdraw from the contract.
The client is only entitled to set-off if the counterclaim is undisputed or has been legally established. In the event of the existence of defects, the client shall not be entitled to a right of retention insofar as this is not in reasonable proportion to the defects and the anticipated costs of subsequent performance, in particular of rectification of defects. An entrepreneur shall only have a right of retention due to defects if the delivery is obviously defective or the client obviously has a right to refuse acceptance of the work.
VI. Defects/Warranty, Liability, Statute of Limitations
If the client is a merchant, he must inspect the delivered goods immediately. Recognisable defects, differences in quantity or incorrect deliveries which are not notified to us in writing within 10 days of acceptance and before processing or installation by the client shall be deemed to have been accepted and approved by the client.
Insignificant deviations from the agreed quality or insignificant impairments of usability do not constitute material defects.
The client must notify us immediately of any material defects.
If the delivered item is defective, we shall be entitled, at our discretion, to remedy the defect within a reasonable period of time or to deliver a defect-free item (subsequent performance). In the event of impossibility or disproportionate nature of both types of subsequent performance, we shall be entitled to refuse subsequent performance. We also have this right as long as the client does not fulfil his payment obligations to an extent that corresponds to the defect-free part of the performance.
In the event that subsequent performance is refused or culpably delayed, subsequent performance is impossible or subsequent performance fails for other reasons, the client shall be entitled to reduce the purchase price or withdraw from the contract in accordance with the respective statutory provisions. If only part of the delivery is defective, the client may only withdraw from the entire contract under the above conditions if he has no objective interest in the partial performance.
A claim by the client for damages or reimbursement of expenses, irrespective of the legal grounds (in particular from breach of main or secondary contractual obligations, from tort or from other tortious liability) is excluded. This also applies to the personal liability of employees, staff, representatives and vicarious agents. The exclusion of liability shall not apply in the case of liability due to intent or gross negligence on our part, on the part of our legal representatives and vicarious agents, or in the case of injury to life, limb or health. Likewise, the exclusion of liability does not apply in the event of the assumption of a guarantee or the assurance of a characteristic, insofar as these form the basis of liability. In the event of a breach of material contractual obligations, liability shall not be excluded, but shall be limited to the foreseeable damage typical for the contract.
Any right of recourse of the customer pursuant to § 478 BGB shall be governed exclusively by the statutory provisions.
Further claims or claims of the client other than those regulated above due to a material defect are excluded. Our liability for defects within the scope of contractual work and services shall also be governed by the aforementioned provisions. In this context, the client shall additionally have the right of self-performance in accordance with § 637 BGB (German Civil Code) if the statutory requirements are met; the claim shall be excluded if we are also entitled to refuse subsequent performance.
Claims for damages are subject to a limitation period of 12 months. Claims arising from liability for material defects are also subject to a limitation period of 12 months; the limitation period begins with the delivery of the goods to the client. This shall not apply insofar as longer periods are stipulated in § 438 para. 1 no. 2b) BGB (items for buildings), § 475 para. 2 BGB (sale of consumer goods) and § 479 BGB (right of recourse in the case of sale of consumer goods). This shall also not apply in the case of liability due to intent, gross negligence or fraudulent concealment of defects by us, our legal representatives and vicarious agents as well as in the case of injury to life, body, health or essential contractual obligations.
Liability under the Product Liability Act remains unaffected by the above provisions.
VII. Retention of title
The delivered goods remain our property until full payment of all claims arising from the business relationship.
The customer is only authorised to resell, process or install the goods subject to retention of title in the ordinary course of business, taking into account the following provisions and only subject to the proviso that the claims are transferred to us in accordance with Clause 4. Pledging, transfer by way of security or assignment as security of the reserved goods is not permitted.
If the goods subject to retention of title are processed by the customer into a new movable item, the processing shall be carried out for us without any obligation on our part arising therefrom. The new item becomes our property. In the event of processing, combining, mixing or blending with third-party goods, we shall acquire co-ownership of the new item in proportion to the value of our reserved goods (invoice value) to the total value. The customer shall store the reserved goods for us free of charge.
The customer hereby assigns to us the claim with all ancillary rights from the resale of the reserved goods. If the principal has sold the claim within the framework of genuine factoring, he shall assign to us the claim against the factor taking its place. If the goods are resold together with other goods, irrespective of whether without or after processing, combining, mixing or blending, this advance assignment shall only apply to the amount of the invoice value of the reserved goods. We accept this assignment.
The customer is authorised to collect the assigned claims as long as he meets his payment obligations. The authorisation to collect shall lapse in the event of default in payment by the customer or a sustained deterioration in his financial position with revocation by us. In this case, we are authorised to inform the customers of the assignment and to collect the claims ourselves. The principal is obliged to provide us with all information necessary for the collection of the assigned claims and to permit the verification of this information.
The client’s authority to sell, process or install the goods subject to retention of title as well as his right of possession to the goods subject to retention of title shall expire in the event of default in payment, a sustained deterioration in the client’s financial situation upon revocation by us, but at the latest upon his suspension of payments or upon application for or initiation of insolvency proceedings against his assets. If we take back the goods subject to retention of title after the client’s right of possession has expired, this shall only constitute a withdrawal from the contract if we expressly declare this. We may satisfy ourselves from the repossessed goods subject to retention of title by private sale.
We undertake to release the securities to which we are entitled in accordance with the above conditions at our discretion at the request of the customer to the extent that their value exceeds the claims to be secured by more than 20%.
The customer must inform us immediately of any enforcement measures by third parties against the goods subject to retention of title or the claims assigned in advance, handing over the documents necessary for an intervention.
The customer shall insure the reserved goods against the usual risks such as fire, theft and water to the customary extent. The customer hereby assigns to us his claims for compensation to which he is entitled from damages of the above-mentioned kind against insurance companies or other parties liable for compensation in the amount of the invoice value of the reserved goods.
VIII. Approval by the building authorities
It is the sole responsibility of the client to ensure that any necessary permits (e.g. building permits, permits from the gas or electricity company) are obtained.
IX. Place of performance, place of jurisdiction and applicable law
The place of performance for both parties is the location of our registered office (invalid for consumers).
The place of jurisdiction is Munich, provided that the client is a merchant. We are also entitled to take legal action against the client at his general place of jurisdiction.
The legal relationship between us and the client shall be governed exclusively by German law. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.
X. Partial Invalidity
Should individual provisions of these Terms and Conditions of Sale be or become invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a legally permissible provision which corresponds or comes closest to the intended economic purpose.
