General terms and conditions

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Enclosed you will find our general terms and conditions (GTC).
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§ 1 General – Scope

Our terms and conditions of business 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 business unless we have expressly agreed to their validity in writing. Our terms and conditions of business shall also apply if we perform the service to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our terms and conditions of business.
All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
Our terms and conditions shall apply to all contracts with entrepreneurs, legal entities under public law and special funds under public law for deliveries and other services, including contracts for work and services and the delivery of non-fungible items.
Our terms and conditions shall also apply to all future business with the customer

§ 2 Offer

Our offer is subject to confirmation and shall only become binding for us upon our written order confirmation, namely on the terms and conditions as stated in the order confirmation.
Drawings, illustrations and printed matter only provide approximate data unless they are expressly designated as binding. The weights and dimensions given are mean values. The above information is neither warranted nor guaranteed.
We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents; they may only be made accessible to third parties with our prior consent. If the order is not placed, these documents must be returned to us free of charge without being requested to do so.
The values given in the offer apply within the tolerance customary in the industry. The order confirmation shall be exclusively authoritative for the scope of performance; all parts and services not expressly listed in the order confirmation shall be performed by the customer, if necessary. Guaranteed are only those properties that are expressly stated as guaranteed in the order confirmation.
For cancellations by the customer of an order that has been placed and has not yet entered the implementation phase, the customer shall pay 2% of the order amount as a cancellation fee. The customer has the right to prove a lower expenditure. Likewise, we may assert our statutory claims.

§ 3 Prices – Terms of payment

Unless otherwise stated in the order confirmation, our prices are “ex works”, excluding packaging; this will be invoiced separately. All additional costs shall be borne by the customer. Customs duties, consular fees, freight, insurance premiums and other incidental expenses shall be borne by the Purchaser.
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.
The deduction of a discount requires a special written agreement. An agreed cash discount always relates only to the invoice value excluding freight and presupposes the complete settlement of all due liabilities of the Purchaser at the time of the cash discount. Unless otherwise agreed, discount periods shall commence from the date of invoice.
Unless otherwise stated in the order confirmation, the following terms of payment shall apply: 1/3 down payment upon receipt of the order confirmation, 1/3 upon notification of readiness for shipment, at the latest upon delivery, the remainder within 30 days after delivery, at the latest, however, 6 weeks after notification of readiness for shipment. Accessory and assembly costs including daily wage bills are due for payment after execution and receipt of invoice.
If the customer is in default of payment, we shall be entitled to demand interest on arrears in the amount of 8 percentage points above the base interest rate. If we are able to prove higher damages caused by delay, 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 less damage as a result of the default in payment.
Payment shall only be deemed to have been made when the invoice amount has been credited in full to our account; checks shall only be accepted on account of payment.
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 is only authorized to exercise a right of retention insofar as a counterclaim is based on the same contractual relationship.
Insofar as the customer is entitled to claims against us from the contractual relationship, their assignment to third parties requires our consent.
We reserve the right to change our prices accordingly if cost reductions or cost increases occur after conclusion of the contract, in particular due to collective wage agreements or material price increases. We will provide evidence of these to the purchaser upon request.
Unbudgeted work shall be invoiced on the basis of the wage hours certified by the Purchaser or the Purchaser’s representative, including any allowances and freight expenses. Material consumed will be invoiced at daily rates.
If, after conclusion of the contract, it becomes apparent that our claim to payment is jeopardized by the Purchaser’s inability to pay or if the Purchaser defaults on payment of a substantial amount or if other circumstances arise which indicate a substantial deterioration in the Purchaser’s ability to pay after conclusion of the contract, we shall be entitled to the rights under Section 321 of the German Civil Code. We shall then also be entitled to declare due all claims not yet due from the current business relationship with the customer.

§ 4 Delivery time

Our delivery obligation is subject to correct and timely self-delivery, unless the incorrect or delayed self-delivery is our fault.
Information on delivery times are approximate. The delivery period shall commence with the dispatch of the order confirmation, but only after the Purchaser has fulfilled all technical and commercial requirements specified in the order confirmation. The start of the delivery period requires clarification of all technical issues. If a specific delivery date is stated in the order confirmation, this shall apply subject to the proviso that all technical questions in which the Purchaser must cooperate are clarified by the Purchaser without delay. In all cases, compliance with our delivery obligation requires the timely and proper fulfillment of the customer’s obligation. The agreed delivery time shall be deemed to have been complied with if the consignment is ready for dispatch within the specified period and the customer is notified of this.
Unforeseen events, such as force majeure, strike, operational disruptions, etc., shall extend the delivery period appropriately. We shall notify the customer of such obstacles without delay. If delivery or performance becomes impossible due to the above-mentioned circumstances, we shall be released from our delivery obligation by notifying the customer of this.
In the event of a delay in delivery, the Purchaser may grant us a reasonable grace period and, after the unsuccessful expiry thereof, withdraw from the contract to the extent that the contract has not yet been performed.
We shall be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributed to us. Unless the delay in delivery is due to an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is due to a culpable breach of a material contractual obligation. In this case, however, the liability for damages is limited to the foreseeable, typically occurring damage.
We shall only be liable for the default of our vicarious agents, whereby only our suppliers, but not their suppliers, shall be deemed to be our vicarious agents.
If the customer unjustifiably withdraws from a placed order, we may, without prejudice to the possibility of claiming higher, actual damages, claim 10% of the order amount for the costs incurred in processing the order and for lost profit. The customer reserves the right to prove a lesser damage.
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. If these conditions 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

The risk shall pass to the Purchaser upon dispatch of the goods from the supplying plant. If the dispatch is delayed due to the conduct of the purchaser, the risk shall pass to the purchaser upon notification that the goods are ready for dispatch. The transport risk shall be borne by the customer if we have chosen a customary and careful mode of transport.
Transport packaging and all other packaging will not be taken back, with the exception of pallets. The Purchaser shall be obliged to dispose of the packaging at its own expense.
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 defects and limitation period

In the case of a purchase contract, the Purchaser’s warranty rights shall be subject to the condition that the Purchaser has duly complied with its inspection and return obligations owed under Section 377 of the German Commercial Code (HGB). Material defects are to be reported in writing immediately, at the latest 7 days after delivery. The contractual partner is obliged to provide us with a detailed written description of the defects he has complained about. Material defects that cannot be discovered within this period even with the most careful inspection must be reported in writing – with immediate cessation of any processing – immediately after discovery, at the latest before expiry of the agreed or statutory limitation period.
In the event of a justified notice of defect within the time limit, we may, at our discretion, either remedy the defect or deliver defect-free goods (subsequent performance), taking into account the interests of the customer. In the event of rectification of defects, we shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the purchased item was taken to a place other than the place of performance.
In the event of failure or refusal of subsequent performance, the Purchaser may, after unsuccessful expiry of a reasonable period, withdraw from the contract or reduce the purchase price. If the defect is not substantial or if the goods have already been sold, processed or transformed, he shall only be entitled to the right to reduce the purchase price. If a contract for work and services exists, the Purchaser shall be obligated in accordance with the aforementioned prerequisites to set a reasonable deadline for the rectification of defects. After unsuccessful expiry of the deadline, he may also assert the rights of withdrawal or reduction.
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 executive employees or vicarious agents. Insofar as we are not accused of intentional breach of contract, the liability for damages shall be limited to the typically occurring damage foreseeable at the time of conclusion of the contract.
These limitations shall not apply in the event of culpable breach of essential contractual obligations, insofar as the achievement of the purpose of the contract is jeopardized, in the event of culpably caused damage to life, limb and health and also not if and insofar as we have assumed a guarantee for the quality of the item sold and in cases of mandatory liability under the Product Liability Act. The rules on the burden of proof shall remain unaffected.
Unless otherwise stipulated above, our liability shall also be excluded for damage caused by defects and consequential damage caused by defects; in particular, we shall not be liable for loss of profit or other pecuniary damage suffered by the customer.
The goods are in conformity with the contract if they do not deviate or deviate only insignificantly from the agreed specification at the time of transfer of risk. Contents of the specification and any expressly agreed purpose of use do not constitute a warranty; the assumption of a warranty requires a written agreement.
Unless otherwise agreed, contractual claims against us arising from and in connection with the delivery of the goods shall become statute-barred 1 year after the transfer of risk. For goods which are used for a building in accordance with their customary use and have caused its defectiveness, contractual claims of the Purchaser shall become statute-barred after 3 years. This shall not affect our liability for intentional and grossly negligent breaches of duty, culpably caused damage to life, limb and health, or the limitation of recourse claims in the event of delivery recourse pursuant to §§ 478, 479 BGB.

§ 7 Joint and several liability

Any further liability for damages than provided for in § 6 is excluded – regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for property damage pursuant to Section 823 of the German Civil Code (BGB).
Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
The limitation of claims between us and the customer shall be governed by § 6 para. 8, insofar as claims from the producer’s liability pursuant to § 823 BGB are not at issue.

§ 8 Retention of title

We retain title to the subject matter of the contract until receipt of all payments arising from the business relationship with the customer. This includes all claims, irrespective of their legal basis, including future and conditional claims, also from contracts concluded at the same time or later within the scope of the business relations. This shall also apply if payments are made on specially designated claims. In the case of a current account, the reserved property shall be deemed to be security for our balance claim.
In case of breach of contract by the customer, in particular in case of default of payment, we shall be entitled to take back the subject matter of the contract. The taking back by us does not constitute a withdrawal from the contract, unless we have expressly declared this in writing. After taking back the subject matter of the contract, we shall be entitled to dispose of it. The proceeds of the sale are to be allocated to the
liability of the Purchaser – less reasonable costs of realization.
The customer is obliged to treat the subject matter of the contract with care. In particular, he is obliged to insure it adequately at his own expense against fire, water and theft damage at replacement value. Insofar as maintenance and inspection work is required, the Purchaser must carry this out in a timely and professional manner at its own expense, unless a separate maintenance contract has been agreed with us.
The customer may neither pledge nor assign by way of security the subject matter of the contract to which we have reserved title. In the event of seizures or other interventions by third parties, the customer 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 a lawsuit in accordance with § 771 ZPO (German Code of Civil Procedure), the customer shall be liable for the loss incurred by us.
The customer shall be entitled to resell the goods subject to retention of title in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including value added tax) of our claim accruing to him from the resale against his customer or third parties, irrespective of whether the subject matter of the contract has been resold without or after processing. We accept this assignment already now. The customer shall remain authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. 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 petition in bankruptcy or composition or insolvency proceedings has been filed or payments have not been suspended. If this is the case, however, we may demand that the customer inform us of the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment.
The processing or transformation of the subject matter of the contract by the customer shall always be carried out for us. If the subject matter of the contract is processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the subject matter of the contract (final invoice amount including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the subject matter of the contract delivered under reservation.
If the subject matter of the contract is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the subject matter of the contract (final invoice amount including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the item of the customer is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us.
The customer also assigns to us the claims to secure our claims against him which arise against a third party as a result of the connection of the subject matter of the contract with a plot of land.
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 claims to be secured by more than 10%; the selection of the securities to be released shall be incumbent upon us.

§ 9 Force majeure

If we are prevented from fulfilling our obligations due to the occurrence of unforeseen circumstances which we were unable to avert despite exercising reasonable care in the circumstances of the case – regardless of whether they occurred at our plant or at our subcontractors (e.g. operational disruptions, delays in the delivery of essential raw and construction materials) – the delivery period shall be extended to a reasonable extent, provided that the delivery or service does not become impossible. If the delivery or service becomes impossible due to the above-mentioned circumstances, we shall be released from the delivery obligation. The same shall apply in the event of a strike or lockout.

§ 10 Applicable law, place of jurisdiction, place of performance

The contractual relationship is subject to the law of the Federal Republic of Germany.
Unless otherwise stated in the order confirmation, our registered office in Schwabach shall be the place of performance.
If the customer is a registered trader, our registered office in Schwabach shall be the place of jurisdiction; however, we shall also be entitled to sue the customer at the court of his place of residence.

§ 11 Severability clause

Should any provision in these terms and conditions be or become invalid, this shall not affect the validity of all other provisions or agreements. The defective provision shall be replaced by a valid agreement which comes as close as possible to the economic purpose of the defective provision.