§ 1 Scope, form
(1) The present general terms and conditions of delivery and service (GTDS) shall apply to all our business relations with our customers. The GTDS shall only apply if our contractual partner is an entrepreneur (§ 14 German Civil Code – BGB), a legal entity under public law or a special fund under public law.
(2) The GTDS shall apply in particular to contracts for the sale and/or delivery of movable goods, for services and for contracts for work and services, regardless of whether we manufacture the goods ourselves or purchase them from subcontractors (§§ 433, 651 BGB). Unless otherwise agreed, the GTDS shall apply in the version valid at the time of the customer’s order or, in any case, in the version most recently communicated to the customer in text form. This agreement also applies to similar future contracts without us having to refer to them again in each individual case.
(3) Our GTDS shall apply exclusively. Any deviating, conflicting or supplementary terms and conditions of the customer shall only become part of the contract if and to the extent that we have expressly agreed to their application. This requirement of consent shall apply in any case, e.g. even if we, being aware of the customer’s general terms and conditions without reservation.
(4) Individual agreements made with the customer in individual cases (including ancillary agreements, supplements and amendments) shall in any case take precedence over these GTDS. For the content of such agreements, subject to proof to the contrary, a written contract or our written confirmation shall be authoritative.
(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 or fax). Legal formal requirements and further proofs, in particular in the case of doubts about the legitimacy of the declarant, shall remain unaffected.
(6) References to the applicability of statutory provisions shall only have a clarifying significance. Therefore, they shall apply even without such clarification, unless GTDS are not directly amended or expressly excluded.
§ 2 Conclusion of contract
(1) Our offers are subject to change and non-binding. This shall also apply if we provide the customer with catalogues, 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 the property rights and copyrights.
(2) The order of the service by the customer shall be deemed to be a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to revoke this contractual offer within 4 weeks after its receipt by us. The documents (drawings, samples or similar) shall be decisive for the contract. The customer vouches for the feasibility and completeness of his information. We shall not be obliged to subject the customer’s information to verification.
(3) Acceptance may be declared either in writing (e.g. by confirmation of order) or by delivery of the goods to the customer.
(4) If objects are handed over to us by the customer for processing, these must be in a condition suitable for processing.
§ 3 Delivery period and delay in delivery
(1) The delivery period shall be agreed individually or shall be specified by us upon acceptance of the order.
(2) If we are unable to comply with binding delivery deadlines for reasons for which we are not responsible (unavailability or impracticability of the service), we shall inform immediately the customer and at the same time inform him of the expected new delivery period. If the service is also not available or not feasible within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part. In case the payment has already been made by the customer, it will be refunded without delay. A case of non-availability or non-feasibility of performance in this sense shall be deemed to be, in particular, the failure of our supplier to deliver to us on time if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obligated to procure in the individual case.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the Buyer shall be required.
(4) The rights of the customer according to § 8 of these GTDS and our legal 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) Delivery shall be made ex our warehouse, which shall also be the place of performance for the delivery and any subsequent supplementary performance.
(2) The risk of accidental loss and accidental deterioration of the goods or of the work performance shall pass to the customer at the latest upon handover. In the case of shipment requested by the customer, however, the risk of accidental loss and accidental deterioration of the goods or work as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. Insofar as acceptance has been agreed or provided for by law, this shall be decisive for the transfer of risk. Also in all other respects, the statutory provisions of the law on contracts for work and services shall apply mutatis mutandis to any acceptance. The handover or acceptance shall be deemed equivalent if the customer is in default of acceptance.
(3) If the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, we shall be entitled to claim compensation for the resulting damage including additional expenses (e.g. storage costs).
§ 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 value added tax.
(2) In the case of shipment, the customer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the customer. The customer shall inform us in writing about the type and scope of coverage. Any customs duties, fees, taxes and other public charges shall be borne by the customer.
(3) The price for the service ordered by the Customer shall be due and payable within 10 days from the date of invoice and delivery or acceptance. However, we shall be entitled, also within the scope of business relationship, at any time to perform a delivery in whole or in part only against advance payment.
(4) Upon expiration of the aforementioned payment period, the customer shall be in default. The price for our performance shall be subjected to interest at the statutory default interest rate in force. 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 insofar as its claim is legally established or undisputed. In the event of defects in the delivery, the counter rights of the customer, in particular pursuant to § 7 para. 6 sentence 2 of these GTDS, shall remain unaffected.
(6) If, after the conclusion of the contract, it becomes apparent (e.g. through an application for the institution of insolvency proceedings) that our claim to the price is jeopardized by the customer’s inability to pay, we shall be entitled in accordance with the statutory provisions to – if necessary after setting a deadline – withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we shall be entitled to declare rescission immediately; the statutory provisions on the dispensability of setting a time limit shall remain unaffected.
§ 6 Retention of title
(1) Until full payment of all our present and future claims arising from the contract and from an ongoing business relationship (secured claims), we shall retain title to the delivered goods/objects/works.
(2) The goods/objects/works subject to retention of title may not be used by pledged to third parties or assigned as security before full payment of the secured claims. The customer shall notify us in writing without delay if an application for the opening of insolvency proceedings has been filed or if third parties have seized 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 price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods/objects/works on the basis of the retention of title. The demand for surrender does not at the same time include the declaration of withdrawal; we are entitled to demand the return of the goods and to reserve the right of withdrawal. If the customer does not pay the due price, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.
(4) Until revoked in accordance with (c) below, the customer shall be entitled to use the goods/objects subjected to retention of title in the ordinary course of business and/or to process them. 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, in which case 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. In all other respects the same shall apply to the resulting product as to the goods delivered subjected to retention of title.
(b) The Buyer hereby assigns to us by way of security all 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 mentioned in para. 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 reservation of title by exercising a right pursuant to para. 3. If this is case, however, we may demand the customer to inform us of the assigned claims and their debtors, to provide all information necessary for collection, to hand over the associated documents and to inform the debtors (third parties) of the assignment. In this case, we shall also be entitled to revoke the customer’s right to further sell and process the goods subjected 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.
(5) If our performance consists in the processing or treatment of objects belonging to the customer and the customer remains the sole owner of the object even after the performance of our service, then the customer shall transfer co-ownership to us on a pro rata basis. The extent of the co-ownership shall be measured on the ratio of the value of our items/valuables (our invoice plus value added tax) to the value of the object handed over by the customer at the time of the performance carried out by us. For items in which we have acquired co-ownership, the above paragraphs shall apply accordingly.
§ 7 Secrecy
The parties shall not disclose to each other or to their employees any knowledge or documents, tasks and business transactions to which they and their employees become privy on the basis of contracts concluded in the legitimate interest of the other contracting party. The mutual obligation to maintain confidentiality shall end after a period of 3 years from the termination of the contract. The confidentiality obligation shall not apply if and to the extent that the relevant information is generally known or becomes generally known through no fault of the contracting party concerned or was or is lawfully obtained by a third party or is already available at the contracting party concerned or has been demonstrably known independently and without recourse to confidential information.
§ 8 Emerging property rights
(1) Inventions made by our employees during the term of the contract in the field of the service specified in the offer, in particular in the course of research and development work, shall be used by us without restriction and registered in our name and then immediately brought to the attention of the customer. We shall be exclusively entitled to these industrial property rights.
(2) Inventions jointly developed by our employees and the customer’s employees during the term of the contract in the field of the service specified in the offer, in particular in the course of research and development work, shall be used by the parties in relation to their employees without restriction and registered jointly in our name and in the name of the customer to the property right. The contracting parties shall inform each other of this and shall mutually agree on the respective inventor’s share and determine the result of this agreement in writing. The contracting parties shall be jointly entitled to such property rights. The resulting costs shall be borne by the contracting parties in proportion to their shares of the inventors. The contracting parties shall consult and agree on the countries in which corresponding foreign protective rights are to be registered.
(3) If we do not wish to apply for a patent for inventions pursuant to paragraphs 1 and 2 above, we shall offer the rights to the invention to the customer for transfer. Details of the transfer shall be agreed separately by the contracting parties in each individual case.
§ 9 Customer’s claims for defects
(1) The rights of the customer in the event of material defects and defects of title (including wrong and improper assembly) shall be governed by the statutory provisions, unless otherwise specified from what is stipulated below. In all cases, the statutory special provisions in in the case of final delivery of the unprocessed goods to a consumer shall remain unaffected, even if the consumer has processed them further (supplier recourse pursuant to §§ 478 BGB). Claims from supplier’s recourse are excluded if the defective goods were delivered by the customer or another entrepreneur, e.g. by incorporation into another product.
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. The agreement on the quality of the goods shall be all the product descriptions that are the subject of the individual contract.
(3) If the quality of the goods has not been agreed upon, the statutory provisions shall apply to determine whether a defect exists or not. For public statements of 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 fulfilled his statutory duties of inspection and notification of defects (§§ 377, 381 HGB). If a contract for work and services was concluded between us and the customer, § 377 HGB shall apply analogously. If a defect becomes apparent during delivery, inspection or at any later point in time, we shall be notified immediately. In any case, obvious defects shall be notified within 3 working days of delivery and defects not apparent on inspection within the same period after discovery. If the purchaser fails to carry out the proper inspection and/or to give notice of defects, our liability for the not reported or not reported in time or not properly reported defect is excluded in accordance with the statutory provisions.
(5) If the delivered item is defective, we may first choose whether to provide supplementary performance by removal of the defect (rectification) or by delivery of a defect-free item (replacement). Our right to refuse subsequent performance under the legal conditions shall remain unaffected.
(6) We shall be entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. The customer shall, however, be entitled to return a part of the purchase price that is reasonable part of the purchase price in relation to the defect.
(7) The customer shall give us the time and opportunity necessary for the supplementary performance owed, in particular to hand over the goods complained of for inspection purposes. In the event of delivery, the customer shall return the defective item to us in accordance with the statutory provisions. The supplementary performance shall neither include the removal of the defective item nor the installation if we were not originally obligated to install the defective item.
(8) The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs shall be borne or reimbursed in accordance with the statutory provisions if a defect is actually present. Otherwise, we shall be entitled to claim from the customer the costs arising from the unjustified costs (in particular inspection and transport costs) arising from the unjustified request for rectification of the defect, unless the lack of defectiveness was not recognizable to the customer.
(9) In urgent cases, e.g. in the event of a risk to operational safety or in order to avert disproportionate damage, the customer shall have the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We shall be immediately informed of such self-remedy, if possible in advance. The right of self-execution shall not apply if we would be entitled to carry out a corresponding subsequent performance in accordance with the statutory provisions.
(10) If the subsequent performance has failed or if a reasonable period to be set by the customer for the subsequent performance has expired unsuccessfully or is defined by legal regulations, the customer may withdraw from the contract or reduce the price. In the case of an insignificant defect, however, there shall be no right to rescind the contract.
(11) Claims of the customer for damages or compensation for futile expenses shall also only exist in the event of defects in accordance with § 8 and shall otherwise be excluded.
§ 10 Other liability
(1) Insofar as nothing to the contrary arises from these GTDS including the following provisions, we shall be liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions below.
(2) We shall be liable for damages – irrespective of the legal basis – within the scope of the liability for intent and gross negligence. In the case of simple negligence, we are liable subject to a milder standard of liability according to statutory provisions (e.g. for care in our own affairs) only
a) for damages resulting from injury to life, body or health,
b) for damages arising from the not insignificant breach of a material contractual obligation (obligation, the fulfilment of which makes the proper execution of the contract possible in the first place 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 damage, typically occurring damage,
c) for damages arising from claims based on data protection law, in particular on the basis of provisions of the DSGVO (German Data Protection Regulation).
(3) The limitations of liability resulting from para. 2 shall also apply in the event of breaches of duty by or in favour of persons whose fault we are responsible for according to statutory provisions. They shall not apply insofar as we have fraudulently or have given a guarantee for the quality of the goods and for claims of the customer under the product liability 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 the customer to terminate the contract (in particular pursuant to §§ 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.
§ 11 Limitation
(1) The general period of limitation for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the period of limitation shall commence with the acceptance.
(2) If, however, the goods are a building structure or an item that has been used for a building structure in accordance with its customary manner of use and has caused the defectiveness thereof (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (Section 438 (1) No. 2 BGB). This shall also be without prejudice to further special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, § 634a para. 3 (fraudulent intent), §§ 444, 445b BGB).
(3) The aforementioned limitation periods shall also apply to contractual and non-contractual claims of the customer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would result in a shorter limitation period. Claims for damages of the customer according to § 8 para. 2 sentence 1 and sentence 2(a) as well as under the Product Liability Act shall, however, become statute-barred exclusively according to the statutory limitation periods.
§ 12 Data protection
(1) Data collected and processed in connection with the conclusion and performance of the contract shall be used exclusively for the content of the contract, the implementation or execution of the contractual relationship in accordance with Article 6 Paragraph 1 b DSGVO (Data Protection Regulation). The data collected in this way will not be forwarded to third parties. In order to enable payments, the necessary data will be passed on to the credit institution commissioned with the payment and/or the service provider who is to process the payment. The use of personal data is only used to the extent necessary or if we are required to do so by law or on the basis of a court decision.
(2) After the purpose for which the data was collected has been achieved, the customer’s personal data is stored until this is no longer required by law, in particular under tax law.
(3) The customer has a claim against us for information as to whether we store and process personal data. If applicable, the customer has a right to information regarding the personal data, and the customer also has a right to receive the Information referred to in Article 15 DSGVO from us.
(4) To the extent that data is recorded incorrectly and incompletely, the customer has, in case of inaccuracy, a right to rectification, and in the case of incompleteness, the customer can refer to Article 16 DSGVO to demand the data to be completed.
(5) The Customer may request the deletion of the personal data. We shall comply with this request without undue delay if one of the following circumstances is given:
– the personal data is no longer necessary because the purpose for which they were collected or processed has been achieved,
– the customer revokes his or her consent and another basis for the collection and processing of the personal data does not exist,
– the customer’s data were collected and processed in a manner that is not lawful.
The customer is not entitled to the deletion of the personal data, insofar as we need them to enforce our contractual claims.
(6) The customer shall have the right to restrict the processing of the personal data if one of the following circumstances is given:
– the accuracy of the collected data is disputed by the customer,
– the processing of the personal data is unlawful and the customer requests, instead of the complete deletion of the data, the restriction of the use,
– we no longer need the data, but the customer still needs it to enforce his legal positions,
– the customer has lodged an objection against the collection and processing of the personal data and it is not yet clear whether the objection was justified.
(7) The customer shall have the right to have the personal data concerning him/her, which have been shown in a format that he/she can understand, and the customer shall have the right to send this data to another responsible party without resistance from us. This only applies if the processing is based on the customer’s consent or on the basis of a contract and the processing of the data is carried out by us as part of an automated procedure.
(8) Insofar as the processing of personal data is based on the consent of the customer, the customer has the right to revoke the consent at any time.
(9) The customer has the option to contact the supervisory authority for data protection directly in the event of a violation of regulations from the DSGVO (General Data Protection Regulation). The exercise of the aforementioned rights under the DSGVO shall not be associated with costs.
§ 13 Choice of law and place of jurisdiction
(1) These GTDS 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.
(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 place of jurisdiction, including international jurisdictions for all disputes arising directly or indirectly from the contractual relationship is our registered office in Aachen, Germany. The same shall apply if the customer is an entrepreneur in the sense of § 14 BGB. However, we are also entitled in all cases, to take legal action at the place of performance of the delivery obligation according to these general terms and conditions of individual agreement or at the general place of jurisdiction of the customer. Prior provisions of law, in particular those relating to exclusive jurisdiction, shall remain unaffected.
Version date: 15.09.2021