1 General
These General Terms and Conditions shall apply exclusively to deliveries/services on our part (also for future contracts).
General terms and conditions of the customer shall only apply if we have expressly agreed to them in writing.
2. merchant status
The client must indicate when concluding the contract if he is not a merchant within the meaning of the German Commercial Code (HGB).
3rd Offer/Standard Performance Description
(1) The characteristics specified in this performance description comprehensively and conclusively define the properties of the delivery item. All information in documents belonging to the offer, such as brochures, price lists and drawings, are only approximate unless they are expressly marked as binding. We reserve the right to make design changes. In particular, public statements by the seller, the manufacturer, their assistants or third parties (e.g. representations of product characteristics in public) do not contain any descriptions of the delivery item that supplement or modify this performance specification.
(2) We reserve all property rights and copyrights to cost estimates, drawings and other documents; they may not be made accessible to third parties without our written consent.
(3) Oral subsidiary agreements and supplements require our written confirmation to be legally effective. Information provided by our employees shall only be binding for us if confirmed by us in writing. The contractor has not provided any advice or guarantee that the equipment is suitable for carrying out the intended work.
4. reservation of self-delivery
Correct and timely self-delivery is reserved.
5 Terms of payment and reservation of right to subsequent performance
All prices quoted are exclusive of packaging, tolls, shipping costs and the respective value added tax ex works/warehouse Laatzen.
Payment is due in full upon delivery or acceptance.
The customer shall be in default of payment 10 days after the due date without any further declarations on the part of the seller, insofar as he has not paid. In the event of the existence of defects, the Client shall not be entitled to a right of retention, unless the delivery is obviously defective or the Client is obviously entitled to a right to refuse acceptance of the work; in such a case, the Client shall only be entitled to retention insofar as the retained amount is in reasonable proportion to the defects and the anticipated costs of subsequent performance (in particular a
remedy of the defect). The client is not entitled to assert claims and rights due to defects if the client has not made due payments and the amount due (including any payments made) is in reasonable proportion to the value of the - defective - delivery or work. The Client may only set off such claims as are undisputed or have been established by a court of law.
6. retention of title
(1) The delivery item shall remain the property of the Contractor until all claims to which it is entitled against the Customer arising from the business relationship have been satisfied.
(2) During the existence of the reservation of title, the customer is prohibited from pledging or transferring ownership by way of security. Resale is only permitted to resellers in the ordinary course of business and only under the conditions that payment of the equivalent value of the delivery item is made to the customer. The client must also agree with the purchaser that the purchaser only acquires ownership upon this payment.
(3) The Customer is permitted to process the delivery item or to mix or combine it with other items. The processing, mixing or combining (hereinafter together: "processing" and with regard to the delivery item: "processed") shall be carried out for the contractor; the item resulting from the processing shall be referred to as "new goods". The Customer shall keep the new goods for the Contractor with the due care of a prudent businessman. In the event of processing with other objects not belonging to the Contractor, the Contractor shall be entitled to co-ownership of the new goods in the amount of the share resulting from the ratio of the value of the processed, mixed or combined delivery item to the value of the other processed goods at the time of processing. If the Customer acquires sole ownership of the new goods, the Contractor and the Customer agree that the Customer shall grant the Contractor co-ownership of the new goods in the ratio of the value of the processed delivery item to the other processed goods at the time of processing.
(4) In the event of the sale of the delivery item or the new goods, the Customer hereby assigns its claim from the resale against the purchaser with all ancillary rights to the Contractor by way of security, without the need for any further special declarations. The assignment shall apply including any balance claims. However, the assignment shall only apply to the amount corresponding to the price of the delivery item invoiced by the contractor. The share of the claim assigned to the contractor shall be satisfied with priority.
(5) If the Customer combines the delivery item or the new goods with real estate or movable property, he shall also assign his claim to which he is entitled as remuneration for the combination, together with all ancillary rights, to the Contractor by way of security in the amount of the ratio of the value of the delivery item or the new goods to the other combined goods at the time of the combination.
(6) Until revoked, the Customer shall be authorised to collect the claims assigned in this retention of title provision. The Customer shall immediately forward payments made on the assigned claims to the Contractor up to the amount of the secured claim. In the event of good cause, in particular default of payment, cessation of payments, opening of insolvency proceedings, protest of a bill of exchange or justified indications of over-indebtedness or imminent insolvency of the Customer, the Contractor shall be entitled to revoke the Customer's collection authority. In addition, the Contractor may, after prior warning and observance of a reasonable period of time, disclose the assignment by way of security, realise the assigned claims and demand the disclosure of the assignment by way of security by the Client to the Customer.
(7) If a justified interest is substantiated, the Customer shall provide the Contractor with the information required to assert its rights against the Customer and hand over the necessary documents.
(8) In the event of seizure, confiscation or other dispositions or interventions by third parties, the Customer shall notify the Contractor without delay.
(9) Insofar as the realisable value of all security interests to which the Contractor is entitled exceeds the amount of all secured claims by more than 10%, the Contractor shall release a corresponding part of the security interests at the request of the Customer; the Contractor shall be entitled to choose between different security interests when releasing them.
(10) In the event of breaches of duty by the Customer, in particular in the event of default in payment, the Contractor shall be entitled, even without setting a deadline, to demand the surrender of the delivery item or the new goods and/or to withdraw from the contract; the Customer shall be obliged to surrender the delivery item or the new goods. The demand for surrender of the delivery item/the new goods does not constitute a declaration of withdrawal by the contractor unless this is expressly declared.
7 Transfer of risk
If, at the request of the customer, the goods are sent to a place other than the place of performance, the risk shall pass to the customer upon dispatch.
8. obligation to inspect
On receipt of the goods, the client is obliged to inspect them for the agreed nominal condition, completeness and damage and to report this. In the case of dispatch, the client must have any damage confirmed in writing by the transport company's representative.
9 Subsequent performance
In the context of subsequent performance, the Contractor is in no case obliged to make a new delivery or production, but is entitled to do so. If the subsequent performance/remedy fails or if the customer rejects the subsequent performance/remedy, the customer shall be entitled to reduce the price or - if a construction work is not the subject of the liability for defects - to withdraw from the contract at his discretion. A failure of the subsequent performance/rectification shall only be deemed to have occurred after the third unsuccessful attempt. The client's right to claim damages instead of performance in accordance with the statutory provisions and these terms and conditions shall remain unaffected. If the Customer wishes to claim damages instead of performance or to carry out self-performance, in this respect a failure of the rectification shall only be deemed to have occurred after the unsuccessful third attempt. The legal cases of dispensability of setting a deadline remain unaffected. The expenses necessary for the purpose of subsequent performance shall be borne by the Customer insofar as they are increased by the fact that the deliveries/services are taken to a place other than the Customer's branch office, unless the transfer corresponds to their intended use.
10 Limitation of liability/impossibility
(1) The Contractor shall be liable in cases of intent or gross negligence on the part of the Contractor or a representative or vicarious agent in accordance with the statutory provisions. Otherwise, the Contractor shall only be liable under the Product Liability Act, for injury to life, limb or health or for culpable breach of material contractual obligations. The claim for damages for the violation of essential contractual obligations is, however, limited to the foreseeable damage typical for the contract. The Contractor's liability shall also be limited in cases of gross negligence to the foreseeable damage typical for the contract if none of the exceptional cases listed in sentence 2 of this paragraph 1 applies.
(2) However, liability for damage caused by the delivery item to the customer's legal assets, e.g. damage to other property, is completely excluded. This shall not apply in the event of intent or gross negligence or in the event of liability for injury to life, limb or health.
(3) The provisions of the above paragraphs 1 and 2 extend to damages in addition to performance and damages in lieu of performance, irrespective of the legal grounds, in particular due to defects, the breach of duties arising from the contractual obligation or from tort. They also apply to the claim for reimbursement of futile expenses. Liability for delay and impossibility shall be determined in accordance with the following paragraphs.
(4) The Contractor shall be liable for delay or impossibility of performance in cases of intent or gross negligence on the part of the Contractor or a representative or vicarious agent in accordance with the statutory provisions. In cases of gross negligence, however, the liability of the Contractor shall be limited to the foreseeable damage typical for the contract if none of the exceptional cases listed in sentence 5 of this provision applies. Due to delay in performance, the Contractor's liability for damages in addition to performance shall be limited to 10% and for damages in lieu of performance to 10% of the value of the delivery/service. Due to impossibility, the Contractor's liability for damages and for reimbursement of futile expenses shall be limited to a total of 10% of the value of the delivery/service. Further claims of the Customer are excluded - even after expiry of a deadline set for the Contractor to perform. The above limitations shall not apply in the event of liability for injury to life, limb or health.
(5) A change of the burden of proof to the disadvantage of the customer is not connected with the above regulations.
11 Right of withdrawal
The Client may only withdraw from the contract within the framework of the statutory provisions if the Contractor is responsible for the breach of duty; in the case of defects, however, the statutory requirements shall apply. In the event of a breach of duty, the Customer must declare within a reasonable period of time after being requested to do so by the Contractor whether it will withdraw from the contract due to the breach of duty or insist on delivery.
12. limitation period for work performance/purchase contracts
(1) a) new items: The limitation period for claims and rights due to defects in deliveries/services - irrespective of the legal grounds - shall be one year. However, this shall not apply in the cases of § 438 para. 1 no. 1 BGB (defects of title in immovable property), § 438 para. 1 no. 2 BGB (buildings, property for buildings), § 479 para. 1 BGB (contractor's right of recourse) or § 634a para. 1 no. 2 BGB (buildings or work the success of which consists in the provision of planning or supervisory services therefor). The periods mentioned in the above sentence 2 are subject to a limitation period of three years.
b) used goods: Claims and rights due to defects in the deliveries - irrespective of the legal grounds - are excluded. This shall not apply in the cases of § 438 para. 1 no. 1 BGB (defects of title in immovable property) or § 438 para. 1 no. 2 BGB (buildings, property for buildings). In the case of the above sentence 2, a limitation period of one year shall apply.
(2) The exclusion or limitation provisions according to para. 1 shall also apply to all claims for damages against the Contractor which are related to the defect - irrespective of the legal basis of the claim. Insofar as claims for damages of any kind exist against the Contractor which are not connected with a defect, the limitation period of para. 1 a) sentence 1 shall apply to them in the case of new items and they shall be excluded in the case of used items.
(3) The limitation periods according to para. 1 and para. 2 apply with the following proviso:
a) The limitation periods generally do not apply in the case of intent.
b) The limitation periods shall also not apply if the Contractor has fraudulently concealed the defect. If the Contractor has fraudulently concealed a defect, the statutory limitation periods which would apply without the existence of fraudulent intent shall apply instead of the exclusion and the period pursuant to para. 1 and para. 2 sentence 1, excluding the extension of the period in the event of fraudulent intent pursuant to §§ 438 para. 3 or 634 a para. 3 BGB), unless another exceptional case pursuant to this para. 3 exists.
c) Furthermore, the limitation periods do not apply to claims for damages in cases of injury to life, body or health or freedom, in the case of claims under the Product Liability Act, in the case of a grossly negligent breach of duty or in the case of a breach of essential contractual obligations.
(4) The limitation period for all claims begins with the delivery, for work performances with the acceptance.
(5) Unless expressly provided otherwise, the statutory provisions on the commencement of the limitation period, the suspension of the running of the limitation period, the suspension and the recommencement of limitation periods shall remain unaffected.
(6) A change of the burden of proof to the disadvantage of the customer is not connected with the above regulations.
13 Place of performance/place of jurisdiction/choice of law
(1) The place of performance for deliveries, services and payments is Laatzen.
(2) If the contractual partner of the clause user is a merchant, the sole place of jurisdiction for all disputes arising from the contractual relationship shall be Hanover.
(3) German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods, even if the order is placed from abroad.
Status: March 2014
