General terms and conditions of sale (GTC)
§ 1 General — Scope of application
1. Our Terms and Conditions of Sale shall apply exclusively; we shall 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 of terms and conditions of the customer that 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 the contract are set down in writing in this contract.
3. Our Terms and Conditions of Sale shall apply only to entrepreneurs. Entrepreneurs in the sense of these terms and conditions are natural or legal persons or partnerships with legal capacity who act in the exercise of a commercial or independent professional activity (§ 14 BGB).
4. Our Terms and Conditions of Sale shall also apply to all future transactions with the Purchaser.
§ 2 Conclusion of contract
1. If the order is to be qualified as an offer according to § 145 BGB, we can accept it within 4 weeks. The acceptance can be declared either in writing or by delivery of the goods to the customer.
2. Our offers are subject to change and non-binding, unless otherwise stated in the order confirmation.
3. We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. This shall also apply to such written documents which are designated as “confidential”. The purchaser requires our express written consent before passing them on to third parties.
4. If the Purchaser orders the goods electronically, the User shall not be obliged to confirm receipt without delay. If a confirmation of receipt is issued, this shall not constitute a binding acceptance of the order. However, the confirmation of receipt may be combined with a declaration of acceptance.
5. The conclusion of the contract is subject to the correct and timely delivery by our supplier. This shall only apply in the event that we are not responsible for the non-delivery, in particular in the event of the conclusion of an implied covering transaction with our supplier.The customer shall be informed immediately of the non-availability of the performance. The consideration will be refunded immediately.
6. If the customer orders the goods electronically, the text of the contract shall be stored by us and sent to the customer by e‑mail upon request together with these General Terms and Conditions. There are no further obligations towards the customer in the case of contracts in electronic business transactions (§ 312 e para. 2 p. 2 BGB). In particular, the user is not obligated to provide the information specified in the legal regulation pursuant to Art. 241 of the Introductory Act to the German Civil Code.
§ 3 Prices — terms of payment
1. Unless otherwise stated in the order confirmation, our prices are “ex works” excluding transport and non-standard packaging; these services will be invoiced separately.
2. If a delivery period of more than 4 months is agreed, we reserve the right to change our prices accordingly if cost reductions or cost increases occur after the conclusion of the contract, in particular due to collective wage agreements or changes in the price of materials. We will provide evidence of these to the purchaser on request.
3. 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.
4. The deduction of cash discount requires a special written agreement.
5. Unless otherwise stated in the order confirmation, the net purchase price (without deduction) shall be paid no later than 10 days after receipt of the invoice or partial invoice. If the customer is in default of payment, we shall be entitled to demand interest on arrears in the amount of 8% above the respective base interest rate p.a.. If we are able to prove higher damages caused by default, we shall be entitled to claim such damages. However, the customer shall be entitled to prove to us that we have incurred no damage or significantly lower damage as a result of the default in payment.
6. The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by us. Furthermore, he shall be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 4 Scope of delivery — delivery time
1. The start of the delivery time stated by us presupposes the clarification of all technical questions.
2. Compliance with our delivery obligation further presupposes the timely and proper fulfillment of the purchaser’s obligations. We reserve the right to plead non-performance of the contract.
3. Minor technical changes / improvements are permitted until the shipment of the delivery. In particular, such technical changes are permissible which were not yet foreseeable at the time of conclusion of the contract and which have an effect in favor of the Purchaser with regard to the agreed scope of performance.
4. In the case of delivery of software, we shall deliver a copy of the software to the Purchaser in machine-readable format. We shall provide the data carrier required for the delivery of the software.
5. We are entitled to make partial deliveries. In this case, the customer shall pay the contract price attributable to the partial delivery.
6. If the customer is in default of acceptance or 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. We reserve the right to assert further claims.
7. If the conditions of paragraph 5 are met, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the Purchaser at the point in time at which the Purchaser is in default of acceptance or debtor’s delay.
§ 5 Transfer of risk — packaging and transport costs
1. Unless otherwise stated in the order confirmation, delivery “ex works” is agreed.
2. Transport packaging and all other packaging shall not be taken back, with the exception of pallets. The Purchaser shall be obliged to dispose of the packaging at its own expense.
3. If the purchaser so desires, we shall cover the delivery by transport insurance; the costs incurred in this respect shall be borne by the purchaser.
§ 6 Liability for material defects
1. The assertion of claims for material defects by the Purchaser shall require that the Purchaser has duly complied with its obligations to inspect and give notice of defects pursuant to Sections 377 and 378 of the German Commercial Code (HGB). The type and scope of the notice of defects must be so precise that we can see from its text which defect is being complained about for which specific delivery.
2. If the purchased item is defective, we shall first provide a replacement delivery or remedy the defect (subsequent performance) at the discretion of the purchaser. If we provide subsequent performance, we shall be obliged to bear all expenses necessary for this purpose, in particular transport, travel, labor and material costs, provided that these are not increased by the fact that the purchased item was brought to a place other than the place of performance.
3. If the supplementary performance fails, is unreasonable or if we are entitled to refuse the supplementary performance because it is only associated with disproportionate costs, the customer may in principle reduce the remuneration (reduction) or withdraw from the contract at his discretion. However, in the event of an insignificant breach of contract, in particular in the event of only minor defects, the customer shall not be entitled to withdraw from the contract.
4. Claims for material defects shall not exist in the event of damage occurring after the transfer of risk as a result of incorrect or negligent handling, excessive stress, use of unsuitable operating materials, improper or omitted maintenance, chemical, electronic or electrical influences, due to unsuitable installation location, lack of stability or unsuitable fuse protection of the power supply as well as due to natural and weather influences or due to other external influences which are not assumed under the contract. If the purchaser or third parties engaged by the purchaser carry out improper modifications, repairs or other maintenance work, there shall be no claims for the resulting consequences. The same applies to changes made to the delivery item without our prior consent.
5. Spare parts supplied for repair which are assigned to specific products or product areas may only be used for such products or product areas. There shall be no warranty claims for material defects if the spare parts are not used as intended.
6. The warranty period is one year from delivery of the goods. This also applies to spare parts.
7. Guarantees in the legal sense require in any case a written declaration designated as “guarantee”. Manufacturer’s guarantees remain unaffected by this.
§ 7 Standard software
1. Insofar as standard software is included in the scope of delivery, the Purchaser shall be granted a non-exclusive right to install and use such software including its documentation for an unlimited period of time.
2. Rights of use to third-party software shall be acquired by the Purchaser directly from such third parties. The Purchaser shall be entitled to transfer the right of use granted to it with the delivery item to a third party. In this case, the Purchaser must physically delete all copies of the program which are still available to it after transfer to the third party. Productive use of the software is only permitted for the Purchaser’s own company purposes, not for the purposes of third parties.
3. The Purchaser may only reproduce, revise, translate or convert the software from the object code into the source code to the extent permitted by law (§ 69 a ff. UrhG). The Purchaser undertakes not to remove manufacturer’s information, in particular copyright notices, or to change them without prior express consent.
§ 8 Customer specific software
If the subject matter of the contract is the production of orderer-specific software, the following provisions shall apply in addition:
1. The subject matter of the contract, rights and obligations shall be set out in a performance certificate to be signed by both contracting parties and in a specification sheet or performance specification — if available. In addition, the following provisions shall apply.
2. We transfer to the customer the simple and non-exclusive right, unlimited in time, to use the software for its entire economic life.
3. Additional programs, options to the software, further hardware components, etc., for which the Purchaser decides at a later point in time, shall be included in an addendum, to which the contractual provisions shall also apply accordingly.
4. We shall supply the customer with a copy of the software in machine-readable format. We shall provide the data carrier required for delivery.
5. Installation, instruction, training shall be carried out, if agreed, in accordance with the performance certificate.
6. During the time period specified in the service certificate under “Test phase”, the software is tested, whereby the functions to be tested are described in the service certificate. After completion of the tests, a written acceptance test must be recorded. Any defects that have occurred must be noted.
7. The scope of delivery does not include the source code of the delivered software.
8. The customer is only entitled to copy the software to the extent that this is necessary for use in accordance with the contract. The Purchaser is authorized to install the software in the mass memory of a computer selected by him, as well as to load it into the working memory of the computer. The customer may not make any changes to the software. This does not apply to changes that are necessary for the correction of errors, if we are in default with the correction of a defect, refuse to correct the error or are unable to correct the error due to the opening of insolvency proceedings.The decompilation of the provided software is not permitted. Exceptions to this are translations of the code form which are indispensable in order to obtain the information required to establish the interoperability of an independently created software with the provided software or with another software, provided that the conditions specified in § 69 e UrhG (German Copyright Act) are fulfilled.The information obtained in the course of actions pursuant to the above section 8 may not be used for purposes other than establishing the interoperability of the independently created software. It may not be disclosed to third parties unless this is necessary for the interoperability of the Independently Created Software.
9. Markings of the software, in particular copyright notices, trademarks, serial numbers or similar, may not be removed, changed or made unrecognizable.
10. The transfer of the right of use is subject to the resolutory condition of full payment of the purchase price. Until this time, the transfer of the right of use is deemed to be temporary.
§ 9 Overall liability
1. 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.We shall also be liable in accordance with the statutory provisions if the customer asserts claims for damages based on an attributable injury to body or health or the loss of life of the customer.
2. This shall not apply if we culpably violate an essential contractual obligation; in this case, our liability for damages shall be limited to the foreseeable, direct average damage typical for the contract.
3. The purchaser’s claims for damages due to a defect shall become statute-barred one year after delivery of the goods. This shall not apply if we can be accused of gross negligence or in the event of bodily injury or damage to health attributable to us or in the event of loss of life of the purchaser.
4. The mandatory provisions of the Product Liability Act shall remain unaffected.
§ 10 Retention of title
1. We retain title to the purchased item until receipt of all payments arising from the business relationship with the purchaser. In case of breach of contract by the customer, in particular in case of default of payment, we shall be entitled to withdraw from the contract and to take back the object of sale.
2. The Purchaser shall be obliged to treat the purchased goods with care; in particular, it shall be obliged to insure them adequately at its own expense against damage by fire, water and theft at replacement value and to use them exclusively for their intended purpose. Insofar as maintenance and inspection work is required, the Purchaser must carry this out in good time at its own expense.
3. In the event of seizures or other interventions by third parties, the purchaser must notify us immediately in writing so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court 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 (incl. VAT) of our claim accruing to him from the resale against his customers or third parties. The customer shall remain authorized to collect the claim after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed, or payments have not been suspended. If this is the case, however, we may demand that the customer informs us of the assigned claim and its debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
5. We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realizable value of our securities exceeds the claim to be secured by more than 10%; the selection of the securities to be released shall be incumbent upon us.
§ 11 Jurisdiction — Place of performance
1. Our place of business shall be the place of jurisdiction; however, we shall also be entitled to sue the customer at the court of his place of residence.
2. Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.
§ 12 Final provisions
1. Amendments and supplements as well as collateral agreements to these General Terms and Conditions must be made in writing. This shall also apply to the extent that the written form requirement set forth herein shall no longer apply. Insofar as a stricter form requirement is prescribed by law, this shall apply. The electronic form with qualified electronic signature (§ 126a BGB) is equivalent to the written form. Any other electronic form (Section 127 (3) BGB) shall not replace the written form.
2. If any provision of this contract is or becomes invalid, or if the contract does not contain a provision that is necessary in itself, this shall not affect the validity of the remaining provisions of this contract.
3. The contract is subject to the law of the Federal Republic of Germany.
