General terms and conditions
§ 1 Scope, form
(1) These General Terms and Conditions (GTC) apply to all our business relationships with our customers. The GTC shall only apply if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The GTC shall apply in particular to contracts for the sale and/or delivery of movable goods, irrespective of whether we manufacture the relevant product ourselves or purchase it from suppliers (Sections 433, 650 of the German Civil Code), as well as to contracts for work and installation (Section 631 of the German Civil Code) and, where applicable, contracts for services (Section 611 of the German Civil Code). Unless otherwise agreed, the GTC in the version valid at the time of the customer's order or commissioning, or in any case in the version last notified to the customer in text form, shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
(3) Our General Terms and Conditions shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the customer without reservation or provide the service without reservation in the knowledge of the customer's general terms and conditions.
(4) Individual agreements made with the Customer in individual cases (including specific project contracts, ancillary agreements, supplements and amendments) shall in all cases take precedence over these GTC. A written contract or our written confirmation shall be authoritative for the content of such agreements.
(5) Legally relevant declarations and notifications by the customer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) shall be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proofs, in particular in case of doubts about the legitimacy of the declaring party, remain unaffected.
(6) References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
§ 2 Conclusion of contract and general obligations
(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the customer with catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - to which we reserve property rights and copyrights.
(2) The order or commissioning by the Customer shall be deemed a binding offer of contract. Unless otherwise stated in the order or commissioning, we shall be entitled to accept this contractual offer within 14 calendar days of receipt by us.
(3) Acceptance may be declared either in writing (e.g. by order confirmation) or by execution of the delivery to the Customer or performance of the service.
(4) We shall be permitted without restriction to use suitable subcontractors to fulfill our contractual obligations. The rejection of certain subcontractors or also suppliers by the customer is only possible with comprehensive written justification.
(5) The customer shall maintain the usual project insurances and shall ensure that we are co-insured under them accordingly.
(6) Under all circumstances, the subsoil risk shall be borne solely by the Customer.
§ 3 Delivery/Service Period and Delay
(1) The delivery/performance period shall be agreed individually or specified by us upon acceptance of the order or commissioning.
(2) If we are unable to meet binding delivery/service deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the customer of this without delay and at the same time notify the customer of the expected new delivery/service deadline. If the service is also not available or cannot be provided within the new delivery/service period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the customer. A case of non-availability of the service in this sense shall be deemed to be in particular, but not exclusively, the non-timely self-delivery by our supplier if we have concluded a congruent covering transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
(3) The occurrence of our default shall be determined in accordance with the statutory provisions, taking into account any adjustments made to the delivery/performance periods pursuant to § 3 para. 2. In any case, however, a reminder by the customer shall be required. If we are in default, the customer may demand lump-sum compensation for the damage caused by the default. The lump-sum compensation shall amount to 0.5% of the agreed net price (contract value) for each completed calendar week of the delay, but not more than a total of 5% of the contract value. The assertion by the customer of any further damage caused by the delay shall be excluded. We reserve the right to prove that the customer has not suffered any damage or that the damage is significantly less than the above lump sum. In this case, the amount of the lump sum shall be adjusted.
(4) The rights of the Customer pursuant to § 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
(1) If a delivery is part of the contract, it shall be ex warehouse. At the customer's request and expense, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(1) The delivery of goods and components required for the execution of the work shall be free to the construction site.
(2) The place of performance for the delivery or service and any subsequent performance shall be our place of business.
(2) The place of performance for the delivery or service and any subsequent performance shall be the place of performance.
(3) The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon handover. However, in the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the customer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed or is customary, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis or directly to an agreed or customary acceptance. The handover or acceptance shall be deemed equivalent if the customer is in default of acceptance.
(4) If the customer is in default of acceptance, fails to cooperate or delays our delivery or service for other reasons for which the customer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). In order to fulfill our contractual obligations, the customer shall provide us with and ensure uninterrupted access to the construction site.
(5) The use of the goods for the intended purpose or their commissioning shall constitute an implied acceptance by the Customer. In this case, the acceptance does not have to be expressly declared by the customer.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory VAT. The deduction of a discount is only permitted in the event of an express written agreement.
(2) In the case of sale by delivery to a place other than the place of performance (§ 4 para. 1 sentence 2), the customer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the customer. Any customs duties, fees, taxes and other public charges shall be borne by the customer.
(3) Remuneration shall be due and payable within 14 calendar days of invoicing and delivery or performance or acceptance of the goods or services. However, we shall be entitled at any time, also within the framework of an ongoing business relationship, to perform a delivery or service in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
(4) Upon expiration of the aforementioned payment deadline, the Customer shall be in default. During the period of default, the agreed remuneration shall bear interest at the applicable statutory default interest rate. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected.
(5) The Customer shall only be entitled to rights of set-off or retention to the extent that its claim has been legally established or is undisputed. In the event of defects in the delivery or service, the Customer's counter rights shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these GTC.
(6) If, after conclusion of the contract, it becomes apparent (e.g. by filing for insolvency proceedings) that our claim to the agreed remuneration is jeopardized by the customer's inability to perform, we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
(7) We reserve the right to adjust prices in the event that wage or material costs demonstrably and significantly change between the time of the offer and the contractual execution due to unforeseeable circumstances. In the event that the documents provided by the customer were incorrect or incomplete and due to this an unforeseeable change to the originally agreed service by us becomes necessary, we are also entitled to make an appropriate adjustment to the prices. The same shall apply in the event of changes in the law or changes in technical standards or guidelines after conclusion of the contract.
§ 6 Retention of title
(1) Until full payment of all our present and future claims arising from the contract and an ongoing business relationship (secured claims), we retain title to the delivered goods.
(2) The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The customer must notify us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the goods belonging to us.
(3) In the event of conduct by the customer in breach of contract, in particular in the event of non-payment of the remuneration due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand surrender of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the customer does not pay the due remuneration, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
(4) Until revoked in accordance with (c) below, the customer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title shall extend to the products resulting from the processing, mixing or combination of our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under reservation of title.
(b) The customer hereby assigns to us by way of security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our co-ownership share, if any, in accordance with the preceding paragraph. We accept the assignment. The obligations of the customer stated in paragraph 2 shall also apply in respect of the assigned claims.
(c) The customer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the customer meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right pursuant to para. 3. If this is the case, however, we may demand that the customer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment. Furthermore, in this case we shall be entitled to revoke the customer's authorization to further sell and process the goods subject to retention of title.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the customer's request.
§ 7 Claims for defects of the customer
(1) The statutory provisions shall apply to the Customer's rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below.
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. Only such product descriptions that are the subject of the individual contract shall be deemed to be an agreement on the quality of the goods.
(3) Insofar as the quality has not been agreed, the relevant statutory regulations shall be used to assess whether or not there is a defect. However, we shall not assume any liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
(4) The customer's claims for defects shall be subject to the condition that he has complied with his statutory obligations to examine the goods and to give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent upon delivery, inspection or at any later time, we must be notified thereof in writing without delay. If the customer fails to carry out the proper inspection and/or to give notice of defects, our liability for the defect not notified or not notified in time or not notified properly shall be excluded in accordance with the statutory provisions.
(5) If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
(6) We shall be entitled to make the subsequent performance owed dependent on the customer paying the remuneration due. However, the customer shall be entitled to retain a part of the remuneration that is reasonable in relation to the defect.
(7) The customer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the customer shall return the defective item to us in accordance with the statutory provisions.
(8) If the customer has installed the delivered defective item in another item or attached it to another item in accordance with its type and intended use, we shall be obligated within the scope of subsequent performance to reimburse the customer for the necessary expenses for removing the defective item and installing or attaching the repaired or delivered defect-free item (reimbursement of expenses). The customer's rights shall be excluded if the customer was aware of the defect at the time of installation or attachment of the defective item. If the customer remained unaware of a defect due to gross negligence, he may only assert rights due to this defect if we fraudulently concealed the defect or assumed a guarantee for the quality of the item. In the event of disproportionately high costs for removal and installation, we shall be at liberty to refer the customer to reimbursement of costs in the amount of a corresponding reasonable sum instead of reimbursement of expenses for removal and installation. In assessing this amount, the value of the item in a defect-free condition and the significance of the defect shall be taken into account and we shall ensure that this does not circumvent the customer's right to reimbursement of removal and installation costs.
(8) If necessary, the remedy of defects shall include the removal of the defective item and the installation of the defect-free item.
(9) We shall bear or reimburse the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if a defect is actually present. Otherwise, we may demand reimbursement from the customer of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the customer.
(10) Only in urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, shall the customer have the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be informed immediately of such a self-execution, if possible in advance. The right of self-execution shall not exist if we would be entitled to refuse a corresponding subsequent performance according to the statutory provisions.
(11) If the supplementary performance has failed or a reasonable deadline to be set by the customer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
(11) If the supplementary performance has failed or a reasonable deadline to be set by the customer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the customer may terminate the contract or reduce the purchase price. The right of withdrawal is excluded.
(12) Claims of the Customer for damages or reimbursement of futile expenses shall also exist in the event of defects only in accordance with § 8 and shall otherwise be excluded.
(13) We shall only provide guarantees for a product that go beyond the liability for defects set out in this § 7 if we expressly agree to this in writing on a project-specific basis.
§ 8 Other Liability; Exclusion of the Right of Ordinary Termination
(1) Insofar as nothing to the contrary arises from these GTC including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
(2) We shall be liable for damages - irrespective of the legal grounds - within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we shall be liable subject to a milder standard of liability in accordance with statutory provisions (e.g. for diligence in our own affairs) only
a) for damages arising from injury to life, limb or health,
b) for damages arising from the not inconsiderable breach of a material contractual obligation (obligation the fulfillment of which is a prerequisite for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from para. 2 shall also apply to breaches of duty by or in favor of persons whose fault we are responsible for according to statutory provisions. They shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the customer under the Product Liability Act.
(4) The customer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the customer (in particular according to § 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
(5) Our liability for all claims of the customer in connection with this contract is limited to the contract value.
§ 9 Limitation
(1) The limitation period for claims arising from material defects and defects of title shall be agreed on a project-specific basis in each case. In the absence of an express agreement, the statutory limitation periods shall apply.
(2) Special statutory provisions on limitation (such as §§ 444, 445 b BGB) shall remain unaffected in any case.
(3) The respective applicable limitation periods shall also apply to contractual and non-contractual claims for damages of the customer based on a defect of the goods or the work, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. However, claims for damages of the customer pursuant to § 8 para. 2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall become time-barred exclusively according to the statutory limitation periods.
§ 10 Choice of law and place of jurisdiction
(1) These GTC and the contractual relationship between us and the Customer shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - including international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office. The same shall apply if the customer is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTC or a prior individual agreement or at the general place of jurisdiction of the customer. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
§ 11 Force majeure
(1) In the event of force majeure, the affected party shall immediately inform the respective other party, giving full details. The affected party shall also inform the respective other party as soon as it is no longer affected by the force majeure.
(2) Force majeure means circumstances for which neither of the parties is responsible and which cannot be controlled by them, such as war, terrorism, natural disasters or strikes.
(3) If the parties are prevented from fulfilling their contractual obligations due to force majeure or other circumstances the elimination of which is not possible or reasonable for them, their respective obligations under the contract shall be suspended for the corresponding period. The agreed execution periods shall be extended accordingly.
§ 12 Intellectual property
(1) If items are manufactured according to drawings, sketches or other instructions provided by the customer, the customer shall be solely responsible for ensuring that no third-party property rights are infringed thereby.
(2) The customer shall not be entitled to any rights against us due to infringements of property rights based on compliance with the documents provided by the customer or the customer's instructions.
(3) If claims are asserted against us by third parties due to such a breach of the duty to protect, the customer shall indemnify us in full against such claims.
§ 13 Confidentiality
(1) The parties undertake to treat all confidential information of which they become aware directly or indirectly in connection with this Agreement as strictly confidential and not to disclose or otherwise make it available to unauthorized persons without the prior written consent of the respective other party. In addition, the parties undertake to take suitable precautions to protect the confidential information and to secure it against unauthorized access by third parties.
(2) Confidential information within the meaning of Section 13 (1) of these GTC shall be all information made available to a party concerning the subject matter of the contract, irrespective of its form.
(3) Information shall not be considered confidential if it has already been made public or was accessible to the recipient of the information at the time the information was obtained.
(4) The parties, their bodies (e.g. shareholders, supervisory board, management board) and their employees shall be entitled to receive confidential information, in the latter case, however, only insofar as they are themselves bound to confidentiality. Persons who are obliged by law to maintain confidentiality (e.g. tax advisors, auditors, lawyers) shall also be deemed to be entitled.
§ 14 Final provisions
(1) In the event that one or more of the clauses of these GTC are invalid in whole or in part, this shall not affect the validity of the remaining clauses.
(2) Amendments and supplements to the agreements made between the parties must be in writing.
(3) The customer is not permitted to assign the contract in whole or in part to a third party without our prior written consent.