The following terms and conditions of delivery and payment form the basis of the Contractor’s (user’s) supply and service contracts as a supplement to the applicable law. Deviating provisions of the Customer shall only be binding on the Contractor if they have been expressly confirmed by the Contractor in writing.
- Conclusion of contract:
The contract for the supply of goods and services shall only be concluded upon written confirmation of the order by the Contractor.
2.1 A binding price shall only be determined by the Contractor’s written order confirmation and subject to the proviso that the order data on which the order confirmation is based remain unchanged. The Contractor’s prices are ex works in euros plus the statutory value added tax applicable at the time of delivery, unless otherwise stated.
2.2 Packaging, postage, insurance and other shipping costs are not included and will be invoiced additionally.
2.3 Any changes to the work made at the request of the Customer after the order has been placed and confirmed shall be charged to the Customer at local and reasonable prices.
2.4 Design drawings, tools, samples and similar preparatory work expressly initiated by the Customer shall be billed for even if the order is not placed for reasons within the Supplier’s sphere of influence. To this extent, these terms and conditions shall already apply before the order is placed.
- Delivery quantity, delivery period:
3.1 The Contractor is entitled to make partial deliveries.
3.2 The delivery times stated by the Contractor relate to the date of dispatch of the goods. They shall be deemed to have been met if the goods leave the factory at this time or the readiness for delivery is communicated to the Customer at this time.
3.3 The agreed delivery period shall always apply after clarification of all technical and commercial details. Even after the commercial parameters have been mutually agreed, technical coordination is usually still required, which is of decisive importance for the scope of the Supplier’s performance obligations, i.e. it is determinative. In this respect, delivery periods shall only apply from the time at which the Supplier establishes in writing that the order can be executed on the basis of the information provided by the Customer. If the Customer does not receive this written confirmation despite agreement on the technical parameters, the Customer may request that the Supplier provide this declaration within a period of 48 hours. If the Supplier does not declare anything in response to this request, completeness shall be deemed to have been established. In this respect, these are initially non-binding delivery periods. Delivery dates are only binding if the delivery date has been confirmed as such in writing to the Customer.
3.4 If an action of the Customer is required for the production of the work or for the execution of the delivery, the delivery period shall only begin with the complete execution of this action by the Customer.
3.5 If the delivery deadline is exceeded, the Customer shall grant a reasonable grace period, which shall not be less than 20% of the delivery period.
3.6 If the delivery deadline, including the reasonable grace period, is not met, the Contractor shall be liable exclusively for the invoice value of the quantity of goods not delivered on time, up to a maximum of the negative interest.
3.7 Force majeure, operational disruptions and similar unforeseeable circumstances for which the Contractor is not responsible shall release the Contractor from compliance with the delivery deadlines for the duration of the operational disruption. In such cases, the Customer shall in particular not be entitled to withdraw from the contract and/or to claim damages.
4.1 The warranty period is two years for newly manufactured items and one year for used, reworked items.
If the Customer is an entrepreneur, a legal entity under public law or a special fund under public law, the warranty period shall be one year.
4.2 The Customer shall inspect the goods immediately after delivery to ensure that they are free of defects. Obvious defects must be reported to the Contractor in writing immediately, but at least within three working days after receipt of the goods. If obvious defects are not reported, not reported in time, or not reported in the correct form, the warranty shall not apply in this respect.
4.3 Other defects must be reported to the Contractor within one week of knowledge of them.
4.4 The Contractor shall only be liable for advertising statements or defects in the instructions for use vis-à-vis Customers who are consumers.
4.5 Minor defects which do not significantly impair the value, suitability or usability of the work are excluded from the warranty.
4.6 The Contractor is entitled to carry out supplementary performance at their discretion. This means that the Contractor is at liberty to decide whether to remedy the defect or to provide a new delivery. If the supplementary performance fails, the Contractor is entitled to a repeated supplementary performance. Even in the case of repeated supplementary performance, the Contractor is entitled to decide between new delivery or rectification of the defect.
4.7 The Customer shall only be entitled to withdraw from the contract and/or to claim damages if the subsequent performance has repeatedly failed. A claim for damages shall only be raised if the Contractor is responsible for gross negligence or intent. Compensation for damages is in any case limited to product liability. Compensation for consequential damages caused by a defect is excluded unless this is based on intent.
4.8 Orders, verbal ancillary agreements to the order, agreements and statements by employees of the Contractor shall only become binding upon written confirmation by the Contractor. This also applies to subsequent changes and additions.
4.9 The Contractor shall notify the Customer in writing without delay of any changes or extensions to the scope of delivery and services that prove necessary during execution.
4.10 The written form shall also be deemed to have been complied with in the event of transmission by way of electronic data transmission.
4.11 If drawings are made part of the contract, they shall expressly be the subject matter of the contract. The parties shall attach drawings/samples to the contract for clarification.
- Breaches of duty:
5.1 Liability for breaches of duty by the Contractor shall be limited to grossly negligent or intentional breaches of duty.
5.2 The Contractor shall in principle not be liable for breaches of duty resulting from work performed in accordance with drawings, artwork or samples checked by the Customer and approved by the Customer as production documents. The Contractor is not liable for the design and correctness of the reproduced templates. The Contractor shall, however, be obliged to inform the Customer without delay of the infeasibility of the technical implementation of the templates, insofar as this is identifiable.
5.3 In particular, liability for the infringement of third party industrial property rights shall be excluded in the case of the performance of work according to the specifications of the Customer. The Contractor shall not be obliged to examine the industrial property rights of third parties.
- Terms of payment:
6.1 Unless otherwise agreed, all invoices raised by the Contractor shall be due immediately and without deductions.
6.2 In the event of late payment, the Contractor shall be entitled to demand interest on arrears at a rate of 5% above the base rate of the German Federal Bank and, insofar as the Customer is not a consumer, at a rate of 8% above the base rate of the German Federal Bank, whereby proof of higher damages due to late payment is permitted at any time.
6.3 Bills of exchange are not accepted, cheques only on account of performance and subject to credit entry.
6.4 If the Customer is in default of payment, the Contractor shall be free to refuse further performance of the contract. If there is a considerable risk to the payment claim, the Contractor shall be entitled to demand advance payments or sufficient security.
If the Customer refuses to make advance payment or provide security, the Contractor may withdraw from the contract and claim damages.
6.5 Notwithstanding any provision of the Customer to the contrary, incoming payments shall settle the costs, then the interest and finally the principal claim; in the case of several claims, the older claim shall be settled first.
- Retention of title:
7.1 The delivered goods remain the property of the Contractor until full and final payment of all claims of the Contractor against the Customer on the invoice date.
7.2 In the event of processing or treatment of the goods subject to retention, the Contractor shall be entitled to the (co-)ownership in the value of the condition of the goods subject to retention before processing or treatment of the resulting object. A sale of the goods subject to retention of title is only permissible in the ordinary course of the Customer’s business. If the Customer sells on the goods subject to retention, the Customer shall assign the claim against the Buyer to the Contractor at the time of the sale. The Customer shall oblige the Buyer to make payment directly to the Contractor within the scope of the payment obligation resulting from the resale. Exceptions to this require prior written agreement between the Contractor and the Customer.
7.3 Otherwise, disposals of the goods subject to retention of title, in particular transfer by way of security or pledging, are not permitted.
7.4 If execution is levied against the Customer’s assets and the goods subject to retention of title are affected thereby, the Contractor shall be notified of this fact immediately in writing, together with all necessary data (enforcement body, file number) and, if applicable, enclosing enforcement records.
7.5 Items provided by the Contractor to the Customer which are not part of the work performance as such (e.g. designs, construction drawings, tools, etc.) shall remain the property of the Contractor.
- Place of performance and jurisdiction:
8.1 The place of performance is the registered office of the Supplier.
8.2 Insofar as the Customer is an entrepreneur, a legal entity under public law or a special property under public law, the place of jurisdiction shall be the registered office of the Supplier’s branch.
- Final provisions:
9.1 If individual provisions are invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be deemed to be replaced by an economically equivalent provision.
All declarations affecting the validity of the contractual relationship must be set out in writing. Any amendment to the written form requirement itself requires the written form.