§ 1 General Scope of Application
(1) Our terms and conditions of sale shall apply exclusively. We do not recognise any terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale shall also apply if we carry out the delivery to the customer without reservation in the knowledge of terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale.
Our Terms and Conditions of Sale shall form an integral part of all contracts which we conclude with our contractual partners for the deliveries or services offered by us.
(2) All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract. (3) Our Terms and Conditions of Sale shall only apply to entrepreneurs within the meaning of Section 310 (1) of the German Civil Code (BGB).
§ 2 Offer Offer documents
(1) Our offers are non-binding unless they are expressly marked as binding or contain a specific acceptance period. We can accept orders within 14 days of receipt.
(2) Our information on the subject of the delivery or service (e.g. weights, dimensions and mixing ratios), with the exception of the values prescribed in accordance with the FMG, are only approximate average values. They are not guaranteed characteristics of quality, but descriptions or characteristics of the delivery or service. Deviations, which are unavoidable despite all care taken in the production of the goods and the determination of the values, are expressly reserved.
(3) We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. This applies in particular to such written documents which are designated as "confidential". The customer must obtain our express written consent before passing them on to third parties. This means that the customer may not disclose them, use them himself or reproduce them. The customer shall surrender these items upon request. Copies made shall be destroyed insofar as they are no longer required in the ordinary course of business.
§ 3 Prices Terms of payment
(1) Unless otherwise stated in the order confirmation, our prices are "ex works", including standard packaging or loose. Any additional packaging will be invoiced separately. 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 changes in the wage sector or changes in the price of materials. We will provide evidence of these to the customer on request.
The final price shall be based on the weight determined by the seller.
(2) 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 prices are in EURO plus taxes, fees and other public charges as well as customs duties for export deliveries.
(3) The deduction of a discount requires a special written agreement.
(4) Unless otherwise stated in the order confirmation, the net purchase price (without deductions) shall be due for payment within 30 days of the invoice date. The statutory rules concerning the consequences of default in payment shall apply.
(5) The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognised by us. Furthermore, he shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 4 Delivery time
(1) The start of the delivery period stated by us presupposes the clarification of all technical questions.
(2) Compliance with our delivery obligation further presupposes the timely and proper fulfilment of the customer's obligation. We reserve the right to plead non-performance of the contract.
(3) If the customer is in default of acceptance or culpably violates other duties 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.
(4) If the conditions of paragraph (3) exist, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the customer at the time at which the customer is in default of acceptance or debtor's delay.
(5) We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a transaction for delivery by a fixed date within the meaning of Section 286 (2) No. 4 of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB). We shall also be liable in accordance with the statutory provisions if, as a consequence of a delay in delivery for which we are responsible, the customer is entitled to claim that his interest in the further performance of the contract has ceased to exist.
(6) We shall also 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; any fault on the part of our representatives or vicarious agents shall be attributed to us. If the delay in delivery is not 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.
(7) We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
§ 5 Transfer of risk Place of performance
(1) The place of performance for an obligation arising from the contractual relationship is 74572 Blaufelden-Wiesenbach, unless otherwise agreed.
(2) The method of delivery or dispatch and the packaging shall be subject to our dutiful discretion. The return and remuneration of reusable transport containers shall be effected upon proper return. The risk shall pass to the customer at the latest at the point in time at which the delivered goods leave the warehouse or the delivery plant. This shall also apply if partial deliveries are made and/or we assume the delivery costs. If the delivery and handover is delayed as a result of a circumstance caused by the customer, the risk shall pass to the customer from the day on which the delivery item is ready for delivery and we have notified the customer of this.
The delivery "free delivery address" means delivery without unloading under the condition of a delivery road passable by a heavy goods vehicle.
(3) The customer must assert claims for transport damage within the special deadlines provided for this purpose without delay vis-à-vis the transport company or the carrier. The conclusion of transport or other insurance policies shall be left to the customer. If the customer so wishes, we shall cover the delivery with transport insurance; the customer shall bear the costs incurred in this respect.
§ 6 Liability for defects
(1) Claims for defects on the part of the customer presuppose that the customer has properly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
(2) Insofar as the purchased item is defective, we shall be entitled, at our discretion, to subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. In the event of rectification of the defect, we shall bear the expenses only up to the amount of the purchase price.
(3) If the supplementary performance fails, the customer shall be entitled to demand withdrawal or reduction at his discretion.
(4) 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 representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.
(5) We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
(6) Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
(7) Unless otherwise stipulated above, liability is excluded. The expiry of the minimum shelf life (MHD) at the customer's premises after the transfer of risk does not entitle the customer to assert claims such as supplementary performance, withdrawal, reduction or damages, unless otherwise agreed in an individual contract.
(8) The limitation period for claims for defects is 12 months, calculated from the transfer of risk.
(9) The limitation period in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected.
§ 7 Joint and several liability
(1) Any further liability for damages than provided for in § 6 shall be excluded irrespective 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 § 823 BGB.
(2) The limitation according to paragraph (1) shall also apply insofar as the customer demands compensation for useless expenses instead of a claim for damages.
(3) 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.
§ 8 Retention of title
(1) We retain title to the object of sale until receipt of all payments arising from the business relationship with the customer. In the event of conduct by the customer in breach of the contract, in particular in the event of default in payment, we shall be entitled to take back the object of sale. Our taking back of the object of sale shall constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to realise it; the proceeds of realisation shall be set off against the customer's liabilities less reasonable realisation costs.
(2) The customer is obliged to treat the object of sale with care; in particular, he is obliged to insure it adequately at his own expense against fire, water and theft at its replacement value.
(3) In the event of seizures or other interventions by third parties, the customer must notify us in writing without delay so that we can bring an 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 judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
(4) The customer shall be entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim which accrue to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer shall remain authorised 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 application for the opening of 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 informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(5) The processing or transformation of the object of sale by the customer shall always be carried out for us. 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 value of the object of sale (final invoice amount, including VAT) to the other processed objects at the time of processing. In all other respects, the same shall apply to the object created by processing as to the object of sale delivered subject to reservation of title.
(6) If the object of sale is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other mixed objects at the time of mixing. If the mixing takes place in such a way that the customer's item 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.
(7) The customer also assigns to us the claims to secure our claims against him which arise against a third party through the connection of the object of sale with a property.
(8) We undertake to release the securities to which we are entitled at the customer's request insofar as the realisable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is incumbent on us.
§ 9 Data protection
(1) We shall be entitled to store, process and transmit data of the customer for the purpose of carrying out the business relationship.
(2) If we make advance payments for the processing of orders, we may obtain credit information from credit agencies in order to protect our legitimate interests, provided that the customer's legitimate interests are not overridden. In order to obtain creditworthiness information, it may be necessary to disclose the customer's name, place of residence and address. The calculation of the customer's creditworthiness can be carried out using his address data. The customer may at any time request information about his data stored by us.
§ 10 Place of jurisdiction Choice of law
(1) If the customer is a merchant, our registered office in Blaufelden-Wiesenbach shall be the place of jurisdiction. However, we are also entitled to sue the customer at the court of his place of residence.
(2) The law of the Federal Republic of Germany shall apply; the UN Convention on Contracts for the International Sale of Goods shall not apply. § 11 Severability clause Should any provision be or become void, the validity of the other provisions shall not be affected thereby.