Â§ 1 General, Area of application
(1) These General Terms and Conditions (AGB) apply to all our business relationships with our customers (hereinafter: “Buyer”). The General Terms and Conditions (AGB) only apply if the Buyer is a company (Â§ 14 BGB [German Civil Code]), a legal person under public law, or a separate estate under public law.
(2) The General Terms and Conditions (AGB) apply particularly to contracts for the purchase and/or delivery of movable property (hereinafter also: ("Goods") irrespective of whether the we manufacture the Goods ourselves or buy them from suppliers. The General Terms and Conditions (AGB) shall also apply in their respective version as framework agreement for future contracts concerning the sale and/or delivery of movable property with the same buyer without us having to refer to these again in each individual case; we will inform the Buyer immediately about changes to our General Terms and Conditions (AGB) in this case.
(3) Our General Terms and Conditions (AGB) apply exclusively. Deviating, opposing or supplementary General Terms and Conditions of the Buyer shall become part of the contract only when and insofar as we have given our express written consent to their application. This approval requirement shall apply in any case, for example also if, with the knowledge of the General Terms and Conditions (AGB) of the Buyer, we carry out the delivery to him without reservation.
Â§ 2 Conclusion of contract
(1) Our quotes are subject to change and non-binding . The same applies if we have given the Buyer catalogs, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions and records (even in an electronic form), to which we reserve ownership rights and copyrights.
(2) The order for the goods placed by the Buyer applies as binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within two weeks after its receipt by us.
(3) Acceptance can either be declared in writing (e.g., by order confirmation) or by delivering the merchandise to the Buyer.
Â§ 3 Delivery date
(1) The delivery date indicated at the time of order is approximate, unless otherwise agreed to.
(2) Insofar as we cannot observe binding delivery deadlines for reasons for which we are not responsible (non-availability of the service) we shall inform the Buyer hereof immediately and at the same time inform it of the expected new delivery date. If the service is not available within the new delivery date, we shall be entitled to withdraw from the contract in whole or in part; we will reimburse any consideration already paid by the Buyer without delay. A particular case of non-availability of the service in this context is our
supplier's failure to supply us in good time, if we have entered into a contract of identical coverage, neither we nor our suppliers are at fault, or we are not required to purchase in individual cases.
Â§ 4 Delivery, passing of risk, acceptance, delay in acceptance
(1) Delivery is done from the manufacturing plant, which is also the place of provision. The manufacturing plant is the manufacturer's factory for delivery of machines, our business establishment for delivery of plastic parts, metal casting parts, sand molds and other individually manufactured parts. Upon the Buyer's request and expense, the goods are dispatched to another destination (dispatch sale). Unless agreed otherwise, we are authorized to determine the nature of shipment (in particular, transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods is transferred to the Buyer upon delivery The risk of accidental loss and accidental deterioration of the goods and risk of delay is however transferred to the forwarder, carrier or other person or organization carrying out the shipping in case of dispatch sale. If an acceptance is agreed upon, it is determining for the risk transfer. Legal provisions of the law on contracts shall apply analogously in other respects to an agreed acceptance. If the Buyer delays acceptance, this is equivalent to transfer or acceptance.
Â§ 5 Prices and payment conditions
(1) The Buyer bears the ex-warehouse transport costs in case of dispatch sale and transport insurance costs in case of delivery of high-value goods. Any possible customs duties, fees, taxes and any other public levies are borne by the Buyer.
(2) Unless otherwise agreed, the purchase price is payable immediately and is to be paid within fourteen days from date of invoice or acceptance of goods. Delivery against prepayment is reserved. For contracts with a delivery value of more than â‚¬15,000.00, we are authorized to request an advance payment of 40 % of the buying price. The advance payment is immediately due without deduction after invoice submission.
(3) With the expiry of the above-mentioned payment period, the Buyer will be in default.
(4) The Buyer is only entitled to set-off rights and rights of retention to the extent its claim is undisputed or has been finally adjudicated upon by the courts.
(5) If there are indications after conclusion of the contract that our entitlement to the purchase price is at risk through insufficient ability of the Buyer to pay (e.g., by an application for opening of insolvency proceedings) then according to the statutory regulations we are entitled to refuse service and – if applicable after setting a deadline – to cancel the contract (Â§ 321 BGB). In the case of contracts for the manufacture of specific items (making to specification) we can withdraw immediately; this shall not affect the legal provisions concerning the dispensability of fixing a time limit.
Â§ 6 Reservation of title and right of lien
(1) The delivered goods (reserved goods) shall remain our property until complete payment of all receivables from this contract.
(2) The Buyer must treat reserved goods with care and must insure them at its own expense against damage.
(3) The Buyer will point out our property in the event of third-party pledging or other access of reserved goods, and inform us immediately so that we can enforce our property rights. Insofar as the third party is not in a position to remunerate any court costs or out-of-court costs arising in this connection, the Buyer shall become liable.
(4) Due to claims from the contractual relationship, we have a contractual lien on the Buyer's items that become our property based on the contract against our amount receivable.
Â§ 7 Buyer's defect claims
(1) Statutory regulations shall apply to the Buyer's rights regarding material defects and defects of title (including incorrect and short deliveries and incorrect mounting or poor mounting instructions), if not specified differently below.
(2) A defect of goods is not present if the goods were properly manufactured based on the data provided by the Buyer, but the data for its part was incorrect or incomplete.
(3) We are entitled to make the owed subsequent performance dependent on the fact that the Buyer pays the due purchase price. The Buyer is however entitled to retain a part of the purchase price, which is reasonable and proportional to the defect.
(4) The Customer shall allow us the necessary time and opportunity for due subsequent performance, in particular, to hand over the goods concerned for purposes of inspection. In the event of substitute delivery, the Buyer must return the defective object to us according to statutory regulations. Subsequent performance includes neither the disassembly of the defective object nor reassembly, if we were not originally required to assemble it.
(5) The expenses necessary for purposes of the test and subsequent performance, in particular transport, conveyance, labor and material costs, (not: disassembly and assembly costs), shall be to our account if a defect indeed exists. If a claim for remedy of defect of the Buyer turns out to be unjustified, we will be able to claim the costs resulting from this to be refunded by the Buyer.
(6) The Buyer's claims for damages or compensation for unsuccessful expenses exist only in accordance with Â§ 8 and are otherwise excluded.
Â§ 8 Other liability
(1) Insofar as not otherwise derived from this General Terms and Conditions (AGB) including the following provisions, we shall be liable according to the relevant statutory regulations in case of violation of contractual and non-contractual duties.
(2) We shall be liable for compensation – regardless of the legal basis – where intent and gross negligence are demonstrated. In case of minor negligence we are only liable
a) for damages resulting from death, physical injury or harm to human health,
b) for damages resulting from the breach of an essential contractual obligation (an obligation, whose proper fulfillment even makes fulfillment of the agreement possible, and on whose observance the contractual partner regularly relies and may rely); in this case, our liability is however restricted to compensating foreseeable and typically occurring damage.
(3) The liability restrictions which can be derived from Para 2 shall not apply insofar as we have maliciously failed to disclose a defect or have assumed a guarantee for the condition of the goods. The same applies to the Buyer's claims according to the Product Liability Act.
Â§ 9 Limitation period
(1) The general limitation period for claims arising due to defects in quality and title is one year from delivery. If acceptance has been agreed to, the limitation period begins with the acceptance.
(2) The above-mentioned limitation periods also apply to the Buyer's contractual and extra-contractual compensation claims based on defective goods, except if the use of the standard legal limitation period (Â§Â§ 195, 199 BGB - German Civil Code) results in a shorter limitation period in individual cases. The limitation periods of the Product Liability Act remain unaffected in any case. Otherwise, statutory limitation periods according to Â§ 8 apply exclusively to the Buyer's damage compensation claims.
Â§ 10 Taking back goods/re-storage fee
(1) The following applies provided we take back goods voluntarily from the Buyer: Only goods in proper, salable condition, which do not involve customized products or orders, can be taken back. The Buyer receives a credit note in the amount of the value of the goods against their return, less a re-storage fee not paid in cash, but only invoiced for future purchases or orders.
(2) The re-storage fee per article is a lumpsum of 15% of the value of the goods taken back.
Â§ 11 Applicable law and place of jurisdiction
(1) This General Terms and Conditions (AGB) and all legal relationships between us and the Buyer shall be governed by the law of the Federal Republic of Germany; excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. Prerequisites and effects of the reserved property as per Â§ 6 are subject to the law at the respective location of the subject, if, under that law, the choice of German law would be inadmissible or invalid.
(2) Place of jurisdiction for all direct or indirect conflicts from the contractual relationship is our registered office in Herrenstetten.