The following terms and conditions of delivery and payment shall apply to the entire business relationship with the Buyer, insofar as the Buyer is an entrepreneur, a legal entity under public law or a special fund under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). The buyer recognises them as binding for the present contract and for all future transactions. Any deviating agreement requires our written confirmation. The buyer waives the right to assert his own terms and conditions of purchase. These shall also not become part of the contract through our silence or through delivery.
1. Scope of services
The scope of the contractual obligations results from our unrestricted offers, our order confirmations or other service descriptions.
2. Documents provided
We reserve the property rights and copyrights to all documents - also in electronic form - provided to the buyer in connection with the placing of the order, such as calculations, drawings, etc. These documents may not be made accessible to third parties without our written consent. These documents may not be made accessible to third parties unless we give the buyer our express written consent to do so.
If we are prevented from fulfilling the contract on time due to procurement, manufacturing or delivery disruptions - at our premises or those of our suppliers - e.g. due to a lack of energy, traffic disruptions, strike, lockout, the delivery period shall be extended accordingly. The buyer may only withdraw from the contract if he sets us a reasonable grace period in writing after expiry of the extended period and at the same time threatens to refuse acceptance of performance after expiry of the grace period. The withdrawal must be made in writing if we do not fulfil the contract within the grace period.
If it becomes impossible for us to fulfil the contract in whole or in part for the aforementioned reasons, we shall be released from the obligation to deliver. We shall notify the buyer immediately of the impediment and the impossibility.
Claims for damages by the buyer due to delay or non-performance are excluded unless we are guilty of intent or gross negligence. If the buyer is in default of payment for a previous delivery or service, we are entitled to withhold deliveries without being obliged to compensate for any damage incurred.
We are entitled to make partial deliveries and to make partial invoices.
We charge the delivered goods at the prices valid on the day of delivery, unless a special agreement has been made in this respect. All prices are exclusive of the value-added tax applicable on the day of delivery. The prices are always ex works, including packaging, but excluding freight, postage and insurance.
Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries which take place 3 months or more after conclusion of the contract. Special agreements are to be fixed in writing before delivery.
Our invoices are payable net within 30 days of the invoice date, unless special payment agreements have been made. The date of receipt of payment by us shall be decisive. However, we may make delivery dependent on immediate payment. In the event of default in payment, we shall be entitled to charge interest on arrears at a rate of 8% above the respective base interest rate per annum. We reserve the right to assert a higher damage caused by default.
Only persons with our written power of attorney for collection using our receipt forms are authorised to accept payments.
The buyer may only assert a right of retention insofar as it is based on claims from the same contract. He is only entitled to a set-off if we have acknowledged the counterclaim or this has been legally established.
6. Transfer of risk
If the goods are shipped to the buyer at the buyer's request, the risk of accidental loss or accidental deterioration of the goods shall pass to the buyer upon dispatch to the buyer, at the latest upon leaving the factory/warehouse. This applies irrespective of whether the goods are dispatched from the place of performance or who bears the freight costs. All shipments, including any returns, travel at the risk of the buyer.
7. Retention of title
We reserve title to the delivered item until full payment of all claims arising from the delivery contract. This also applies to all future deliveries, even if we do not always expressly refer to this. We are entitled to take back the object of sale if the buyer behaves in breach of contract.
The buyer is obliged to treat the object of sale with care as long as ownership has not yet passed to him. In particular, he is obliged to insure it adequately at his own expense against theft, fire and water damage at replacement value. If maintenance and inspection work has to be carried out, the buyer shall carry this out in good time at his own expense. As long as ownership has not yet been transferred, the buyer must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action in accordance with § 771 ZPO, the buyer shall be liable for the loss incurred by us.
The buyer is entitled to resell the reserved goods in the normal course of business. The buyer hereby assigns to us the claims against the customer from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply irrespective of whether the purchased goods have been resold without or after processing. The buyer remains authorised to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we shall not collect the claim as long as the buyer 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 there is no suspension of payments.
The processing or transformation of the object of sale by the buyer is always carried out in our name and on our behalf. In this case, the expectant right of the purchaser to the object of sale shall continue in the transformed object. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the buyer's item is to be regarded as the main item, it shall be deemed to be agreed that the buyer transfers co-ownership to us on a pro rata basis and keeps the sole ownership or co-ownership thus created for us. In order to secure our claims against the buyer, the buyer also assigns to us such claims against a third party which arise to him through the combination of the reserved goods with a property; we accept this assignment already now.
We undertake to release the securities to which we are entitled at the request of the buyer insofar as their value exceeds the claims to be secured by more than 20%.
The goods shall be delivered in the design and condition as is customary with us at the time of delivery.
Warranty rights of the buyer presuppose that he has duly fulfilled his inspection and complaint obligations owed under § 377 HGB (German Commercial Code).
Claims for defects shall become statute-barred 12 months after delivery of the goods supplied by us to our purchaser. The statutory limitation period shall apply to claims for damages in the event of intent and gross negligence as well as in the event of injury to life, limb and health which are based on an intentional or negligent breach of duty by the user.
Our consent must be obtained before any goods are returned.
If, despite all due care, the delivered goods have a defect which was already present at the time of the transfer of risk, we shall, at our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. We shall always be given the opportunity to remedy the defect within a reasonable period of time. Claims under a right of recourse shall remain unaffected by the above provision without restriction.
If the supplementary performance fails, the buyer may - irrespective of any claims for damages - withdraw from the contract or reduce the remuneration.
There shall be no claims for defects in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear as well as in the case of damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating resources or due to special external influences which are not assumed under the contract. If the purchaser or third parties carry out improper repair work or modifications, there shall also be no claims for defects for these and the resulting consequences.
Claims by the buyer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded insofar as the expenses increase because the goods delivered by us have subsequently been taken to a place other than the buyer's branch office, unless the transfer corresponds to their intended use.
The buyer's right of recourse against us shall only exist insofar as the buyer has not made any agreements with its customer that go beyond the legally mandatory claims for defects. Furthermore, paragraph 6 shall apply accordingly to the scope of the buyer's right of recourse against us.
9. Other claims for compensation
Other claims for damages by the buyer against us - irrespective of the legal grounds - are excluded, unless we are guilty of intent or gross negligence.
10. Property rights
We assume liability that the sold goods as such are free from third party property rights in Germany. If third parties should assert justified claims based on industrial property rights, we shall, at our discretion and at our expense, either obtain a licence for the buyer or replace the sold goods with goods free of industrial property rights or take them back against return of the purchase price. We shall be liable for further claims in accordance with clause 9. We shall not be liable for ensuring that the application of the sold goods does not interfere with the property rights of third parties.
In the case of goods manufactured according to the buyer's specifications, we do not assume any liability for the fact that third-party property rights are not infringed; this also applies if we have participated in the development or have developed the goods according to the buyer's specifications. The buyer shall indemnify us against all damages incurred by us in the execution of such orders due to the infringement of property rights.
11. Taking back old appliances
We naturally recognise our obligation to take back appliances manufactured by us in accordance with the ElektroG. Please feel free to contact us for more information and further processing.
12. Subsidiary agreements, place of jurisdiction, applicable law
Subsidiary agreements, amendments and/or supplements to the contract must be made in writing to be effective.
Should any of the above provisions be or become invalid, irrespective of the legal grounds, this shall not affect the validity of the remaining provisions.
The place of jurisdiction for all disputes arising in connection with the contractual relationship - also from withdrawal - is Nuremberg if the buyer is a registered trader. However, we are entitled to choose the court with local jurisdiction for the buyer.
This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).