Terms and Conditions

General Sales, Delivery, and Payment Conditions

As of: 01/2014

1. General and Scope

For all mutual claims arising from or in connection with a contract between the client (AG) and the contractor (AN), the following sales, delivery, and payment conditions (AGB) always apply. Deviations from these AGB, especially those in the client’s purchasing conditions or AGB, only apply if confirmed in writing by the AN. They do not bind the AN if not expressly objected to in individual cases. In terms of these AGB, the delivery note or the invoiced invoice serves as confirmation of the order in the event of immediate order placement. Silence from the AG regarding the AN’s AGB and/or acceptance of our delivery and performance is considered approval of our AGB. These AGB only apply to individuals who, at the time of contract conclusion, are acting in the exercise of their commercial or independent professional activity (entrepreneurs), to legal entities under public law, or to public-law special assets.

2. Contract Conclusion

All offers made by the AN are subject to change regarding price, quantity, delivery deadlines, and delivery options. Orders are only considered accepted once they have been confirmed in writing by the AN. The order confirmation from the AN is binding for the content of the contract; if the AN does not receive a written objection within 14 days from the date of the order confirmation, this does not apply if the order confirmation deviates so significantly from the order that the AG’s consent cannot be expected. Technical changes remain reserved within reasonable limits during the processing of the order.

All agreements made for the execution of the contract must be documented in writing. The AN reserves ownership and intellectual property rights to design documents, including drawings, calculations, and electronic data, as well as printouts of data. Prior to their disclosure to third parties, the express written consent of the AN is required.

If circumstances arise after order confirmation that raise doubts about the creditworthiness of the AG or if the AG defaults on other liabilities, the AN is entitled to deliver this and further orders only against prepayment or other security measures or to withdraw from the contract in case of non-fulfillment. In this case, the AN has the right to demand cash payment against return of the bills of exchange regardless of the term of accepted bills. The rights under § 321 of the German Civil Code remain unaffected, and deliveries can be stopped, and goods in transit can be recalled.

3. Prices and Payments

Prices are ex works, excluding packaging, freight, and insurance, and are net prices plus the applicable statutory value-added tax. Unless otherwise agreed, invoices from the AN are due within 30 days without deduction. The AN grants a 2% discount for payment within 8 days from the invoice date. Repairs and labor are to be paid immediately upon receipt of the invoice without deduction in all cases. In the case of partial deliveries, the AN is entitled to issue interim invoices for the services provided. Offset and/or retention rights are only available to the AG if the counterclaim to which it is entitled has been legally established, is undisputed, or has been acknowledged by the AN. The acceptance of bills of exchange or checks by the AN is only for payment purposes. The AG bears all costs and expenses for the discounting or collection of bills of exchange.

4. Delivery, Delivery Time, Transport

5. Transfer of Risk

Risk passes to the AG as soon as the goods leave the AN’s premises, even in the case of partial deliveries. In the event of collection by the AG, risk transfers upon notification of readiness for dispatch. If dispatch is delayed due to circumstances attributable to the AG, risk transfers upon dispatch notification. In the provision of works, including divisible works, unless a formal acceptance is agreed upon or another agreement is made, they are considered accepted 10 days after delivery. When the AG is responsible for assembling equipment and accessories, the installation instructions provided by the AN must be followed. Otherwise, the AN is not liable for resulting defects and damages.

6. Retention of Title

The delivered goods remain the property of the AN (reservation of title) until full payment of all obligations, including any ancillary claims, owed by the AG to the AN in any form. In cases where additional installation services are to be provided, ownership of the reservation of title passes to the AG only upon receipt of the payment corresponding to the installation service. From the transfer of risk until the transfer of ownership, the AG is responsible for insuring the reserved goods against theft, breakage, fire, water, and any other damages. The AG hereby assigns all rights from insurance contracts and claims against insurers to the AN. The AN accepts this assignment. In the case of ongoing accounts, the reserved ownership serves as security for the AN’s balance claim. The AG is not permitted to pledge or transfer ownership of the reserved goods for security purposes. In the event of seizures, attachments, or other dispositions, the AG must immediately notify the AN. In case of any breach of contract, the AG must, upon request by the AN, return all reserved goods in their possession at their own expense without prior notice. This applies even if the AG becomes insolvent, files for bankruptcy, or experiences a significant deterioration in their financial situation. The repossession of reserved goods or their seizure by the AN constitutes a withdrawal from the contract only if expressly declared by the AN.

The AG is authorized to resell the reserved goods in the ordinary course of business. The AG hereby assigns to the AN all claims up to the invoice amount (including VAT) arising from the resale against third parties. The AN accepts this assignment. After the assignment, the AG is authorized to collect the claim. If the AG defaults on payment, applies for the opening of insolvency proceedings, is insolvent, suspends payments, or experiences a significant deterioration in its financial situation, the right to resell and the authorization to collect cease to exist. In this case, the AN may also exercise its retained right to collect the assigned claims itself and demand that the AG inform its debtors of the assignment. Regardless, the AN may at any time request the AG to disclose the assigned claims and their debtors, provide all necessary information for collection, and hand over the related documents. The processing of the goods by the AG is always carried out in the name and on behalf of the AN.

If the reserved goods are processed with other items not belonging to the AN, the AN acquires co-ownership of the new item in proportion to the value of the reserved goods compared to the other processed items at the time of processing. The same applies to the item created through processing as for other reserved goods (see above).

If the reserved goods are combined with other items not belonging to the AN in such a way that they become an essential component of a unified object, the AN acquires co-ownership of the new item in proportion to the value of the reserved goods compared to the other connected items at the time of connection. If the connection is made in such a way that the AG’s item is to be regarded as the main item, it is agreed that the AG transfers proportionate co-ownership to the AN. The AG holds the resulting co-ownership for the AN. The provisions regarding connection apply mutatis mutandis in the event of mixing or blending.

The AN undertakes to release the security rights to the extent that their value exceeds the claims to be secured by more than 20%

7. Warranty

Claims for material defects expire after 12 months. This does not apply if the law prescribes longer periods according to §§ 438 para. 1 No. 2 (buildings and items for buildings), 479 para. 1 (recourse claims), and 634a para. 1 No. 2 (construction defects) of the German Civil Code (BGB), as well as in cases of injury to life, body, or health, in the event of intentional or grossly negligent breach of duty by the supplier, and in cases of fraudulent concealment of a defect. The statutory provisions on expiration, suspension, and commencement of periods remain unaffected.

Claims for defects by the AG require that the AG has duly fulfilled its inspection and complaint obligations as required by § 377 of the German Commercial Code (HGB). For defects, the AN initially provides warranty at its discretion through subsequent performance or replacement delivery. The right to reduce the purchase price or withdraw from the contract, or in the case of a contract for work and services – according to § 637, the right to rectify the defect itself – is only available to the AG if subsequent performance has failed twice. Withdrawal is excluded if the defect is insignificant. Claims for defects do not exist in the case of only minor deviations from the agreed quality, only minor impairment of usability, normal wear and tear, or damage resulting from incorrect or negligent handling, improper use, excessive strain, unsuitable operating materials, or due to special external influences not provided for in the contract. Any warranty expires if the AG carries out repairs or interventions themselves or has them carried out by persons not authorized by the AN, provided that the malfunction is related to this.

Warranty repairs are free of charge if the delivery item is delivered to the AN’s premises free of charge, provided that it turns out that the defects are due to circumstances existing before the transfer of risk.

Claims by the AG for expenses required for subsequent performance, in particular transport, travel, labor, and material costs, are excluded to the extent that the expenses increase because the subject of the delivery has subsequently been taken to a location other than the AG’s branch, unless the relocation corresponds to its intended use. The AG must give the AN the necessary time and opportunity to carry out all necessary improvements and replacement deliveries after consulting with the AN; otherwise, the AN is exempt from liability for the resulting consequences. Only in urgent cases endangering operational safety or to prevent disproportionately large damage, with immediate notification to the AN, does the AG have the right to rectify the defect itself or have it rectified by third parties and demand reimbursement of the necessary expenses from the AN.

The AN may refuse to remedy defects as long as the AG is in arrears with its obligations. A right of retention for any delivery defects up to three times the value of the defect rectification costs is not affected hereby.

For claims for damages, Article 8 applies mutatis mutandis (Other Liability). Further or different claims by the AG against the supplier and its agents for material defects than those regulated in this Article 7 are excluded.

8. Other Liability

Claims for damages and reimbursement of expenses – particularly concerning consequential damages (including loss of profit) – by the AG, regardless of the legal basis, especially due to breach of obligations arising from the contractual relationship and tort, are excluded. The liability of the AN for damages resulting from injury to life, body, or health, for claims under the Product Liability Act, for explicit written warranties (excluding consequential damages not covered by the warranty), and for all foreseeable damages where the AN is guilty of intent or gross negligence, remains unaffected. The AN is liable for property damage caused by simple negligence to the extent that it is able to obtain coverage within the scope of its existing liability insurance.

To the extent that the AN’s liability for damages to the AG is excluded or limited, this also applies to the personal liability for damages of its employees, workers, staff, representatives, and agents. The aforementioned provisions do not entail a shift of the burden of proof to the detriment of the AG. If the AG is entitled to claims for damages according to this Article 8, these claims shall become time-barred upon expiry of the limitation period applicable to claims for material defects according to Article 7. The statutory limitation provisions apply to claims for damages under the Product Liability Act.

9. Choice of Law, Place of Performance, and Jurisdiction

The legal relationship between the AN and the AG is subject to the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded. The exclusive place of performance for both parties to the contract is the registered office of the AN. The place of jurisdiction for all disputes arising from the contractual relationship, including disputes regarding its establishment and validity, is Stuttgart. However, the AN is also entitled to assert claims at any other statutory place of jurisdiction.

10. Changes

Changes to these terms and conditions or other contractual agreements must be documented in writing.

11. Partial Validity

If individual parts of these General Terms and Conditions are rendered invalid by law or individual contract, the validity of the remaining provisions shall not be affected thereby. The parties agree to replace the invalid provision with a provision that comes as close as possible to the economic purpose of the invalid provision.