AGB & AEG

General terms and conditions of sale, delivery and payment

All our deliveries and services are provided exclusively on the basis of the following terms and conditions. We object to the buyer’s terms and conditions of purchase if they do not agree with our terms and conditions of sale, delivery and payment. The buyer recognizes our terms and conditions at the latest upon acceptance of our goods without objection.

1. Offers, orders

1.1 Our offers are generally subject to change unless we specify a period of validity that is binding for us. All agreements, in particular the acceptance of orders placed with us, require our written confirmation in order to be valid.

1.2 The documents, illustrations, drawings, weights and dimensions belonging to the offer are only approximate values and do not constitute a specification of the quality of the goods. Insofar as no limits for permissible deviations are specified in the order confirmation and no expressly recognized buyer specifications arise, deviations customary in the industry are permissible in any case. The quality, suitability, qualification and function as well as the intended use of our goods shall be determined exclusively in accordance with our performance specifications and technical qualifications. Public statements, promotions or advertising by us or third parties do not constitute a description of the quality of the goods. We reserve ownership rights and copyrights to all documents; they may not be made accessible to third parties without our consent.

1.3 Guarantees regarding the quality or durability of our goods must be expressly identified as such in the order confirmation. If samples or specimens are supplied, their quality shall not be deemed guaranteed unless otherwise expressly stated in the order confirmation. The same shall apply to the details of analyses.

1.4 Design proposals which we make on the basis of the purchaser (e.g. verbal information, drawings or other documents) are purely recommendations and do not constitute information on quality or intended use, unless otherwise expressly stated in the order confirmation.

1.5 We shall be liable for damage to or loss of drawings, samples, models etc. provided to us by the Buyer in accordance with Clause 7.

2. prices

The prices shall apply ex dispatch warehouse plus the respective statutory value added tax and without packaging and without shipping costs. If the prices of our suppliers, freight charges and/or public charges increase between conclusion of the contract and delivery, we may increase the price accordingly; this shall only apply to consumers if delivery is to take place more than four (4) months after conclusion of the contract.

3. industrial property rights

If we have to deliver items according to drawings, models or samples provided to us by the customer, the customer warrants to us that the manufacture and delivery of the items does not infringe the industrial property rights of third parties. He shall indemnify us and our suppliers against all claims arising from the use of such industrial property rights. The customer shall assume all damages that may arise from the infringement of third-party rights.

4. Delivery

4.1 Delivery periods stated by us are only approximate, unless expressly agreed otherwise. The Buyer may set us a reasonable deadline for delivery two weeks after expiry of these delivery periods. We shall only be in default upon expiry of the grace period. Under no circumstances shall delivery periods begin to run before the customer has provided the documents to be procured by him, e.g. approvals or releases of production drawings, and we have not received an advance payment, insofar as an advance payment has been agreed in writing.

4.2 In the event of delay in delivery or impossibility of delivery, we shall only be liable for claims for damages in accordance with clause 7. The damage caused by delay to be compensated by us in accordance with clause 7 shall be limited to the foreseeable, typically occurring damage. In addition, the damages to be compensated for late delivery, partial delivery and slight negligence shall be limited to a maximum of 5% of the delivery value of the delayed (partial) delivery for each completed week.

4.3 In the event of force majeure, measures in the context of labor disputes, in particular strikes and lockouts, as well as non-delivery, incorrect or delayed delivery by our supplier, for whatever reason (reservation of self-supply), and other impediments to performance for which we are not responsible, we may postpone delivery for the duration of the impediment and a reasonable start-up period thereafter. If it is likely to be a permanent impediment, we shall be entitled to withdraw from the contract in whole or in part. In this case, the buyer shall not be entitled to any claims for damages against us. He shall not be obliged to provide the consideration and shall receive back the advance payment made by him.

5. Payment

5.1 Unless otherwise agreed, the invoice amount is due for payment within 14 days of the invoice date.

5.2 If payment deadlines are exceeded, we shall charge consumers interest at a rate of 5% above the respective prime rate of the Deutsche Bundesbank p.a. and entrepreneurs interest at a rate of 8% above the respective prime rate of the Deutsche Bundesbank p.a. unless higher or lower damages are proven.

5.3 Our claims shall become due immediately, irrespective of the term of bills of exchange accepted on account of performance, if contractual agreements are not complied with by the Buyer or if we become aware of circumstances which reduce the creditworthiness of the Buyer. In this case, we are entitled to demand advance payments for pending deliveries. Further claims remain unaffected.

5.4 The buyer is not entitled to reduce our claims by counterclaims unless these have been recognized by us in writing or have been legally established. The Buyer shall have no right of retention unless the Buyer is not an entrepreneur and the right of retention is based on the same contractual relationship.

6. shipping

All sales are ex works St. Georgen. If the buyer is an entrepreneur, shipment shall be at the buyer’s expense and risk. In this case, the risk shall pass to the buyer, even in the case of partial deliveries, as soon as the consignment has been handed over to the person carrying out the transportation – irrespective of whether this is a person belonging to our company or a third party – or has left our factory for the purpose of dispatch. If the buyer is a consumer, the risk is transferred to the buyer when the sold goods are handed over. If the goods are ready for dispatch and dispatch is delayed for reasons for which the buyer is responsible, the risk shall pass to the buyer at the beginning of the delay in acceptance, irrespective of whether the buyer is an entrepreneur or a consumer.

7. Warranty

7.1 The Buyer shall carefully inspect the delivered goods immediately upon arrival at the place of destination, even if samples or specimens have been sent beforehand. The buyer must notify us of a defect in writing or by telex with a precise description of the defect no later than 7 days after receipt of the goods at the place of destination. If the defect was not recognizable upon delivery despite careful inspection of the goods, it must be reported immediately after its discovery. The latter only applies if the buyer is a consumer. The delivery shall be deemed to have been approved if we do not receive a notice of defects within these deadlines. Notices of defects must always be addressed to us directly.

7.2 In the event of a justified and timely notice of defects, we shall, at our discretion, provide subsequent performance by repair or replacement, provided that the Buyer is an entrepreneur. If the buyer is a consumer, he shall initially have the choice of whether our subsequent performance is to take the form of repair or replacement. However, we are entitled to refuse the type of subsequent delivery chosen if it is only possible at disproportionate cost and the other type of subsequent performance is without significant disadvantages for the buyer.

7.3 If the subsequent performance or replacement delivery fails, the buyer may demand a reduction in the purchase price or rescission of the contract. In the case of only minor defects, the buyer shall not be entitled to withdraw from the contract. If the buyer chooses to withdraw from the contract after subsequent performance has failed, he shall not be entitled to any additional claim for damages due to the defect.

7.4 If the Buyer receives faulty assembly instructions, we shall only be obliged to supply faultless assembly instructions and only if the fault in the assembly instructions prevents proper assembly.

7.5 The above provisions conclusively contain the warranty for our goods. In particular, we shall be liable for all other claims for damages to which the Buyer may be entitled due to or in connection with defects in the delivered goods, irrespective of the legal grounds, exclusively in accordance with Section 7.6.

7.6 We shall only be liable for claims for damages due to culpable acts, irrespective of the legal grounds, including delay, defective delivery, breach of duties arising from a contractual obligation or breach of duties during contract negotiations, tort, product liability (with the exception of liability under the Product Liability Act), in the event of intent or gross negligence. Liability for slight negligence is excluded unless the purpose of the contract is substantially jeopardized by the breach. In any case, we shall only be liable for typical damage foreseeable at the time of conclusion of the contract. This limitation does not apply to injuries to life, body or health suffered by the purchaser. Personal liability of our legal representatives, vicarious agents and employees for damages caused by them through slight negligence is excluded.

7.7 Warranty claims of an entrepreneur shall expire within one year of delivery of the goods. The same applies to the sale of used goods to consumers. Warranty claims by consumers shall otherwise expire within two years of delivery of the goods. The buyer’s claims for compensation shall expire within one year of delivery of the goods. This shall not apply if we can be accused of fraudulent intent.

7.8 Agreements between the buyer and his customers which go beyond the statutory warranty claims shall not be at our expense.

8. Retention of title

8.1 All delivered goods shall remain our property (goods subject to retention of title) until the Buyer has settled all existing claims and, if he is an entrepreneur, all claims arising after conclusion of the contract. This shall also apply to payments made by the buyer in respect of claims specifically designated by him.

8.2 Any treatment and processing of the goods subject to retention of title shall be carried out for us as manufacturer within the meaning of § 950 BGB, without any obligation on our part. If the Buyer processes, combines or mixes the goods subject to retention of title with goods of other origin to form a new item or a mixed stock, we shall be entitled to co-ownership of the goods in the ratio of the invoice value of the goods subject to retention of title at the time of delivery to the value of the other processed or mixed goods. The co-ownership share is deemed to be reserved goods in accordance with clause 8.1.

If the reserved goods are combined with other items and if an item belonging to the Buyer is to be regarded as the main item within the meaning of Section 947 BGB, it is hereby agreed that a co-ownership share shall be transferred to us in the ratio of the invoice value of the reserved goods to the value of the main item and that the Buyer shall keep the item in safe custody for us free of charge. The co-ownership share shall be deemed to be goods subject to retention of title in accordance with clause 8.1.

8.4 The Buyer shall store the reserved goods for us. Upon request, we shall be provided with an inventory and adequate identification at the place of storage at any time. The Buyer must notify us immediately of any seizure or other impairment of our rights by third parties, stating all details that will enable us to take legal action against such action.

8.5 The Buyer may only sell the goods subject to retention of title in the ordinary course of business under his normal conditions and subject to the agreement of a retention of title to the extent drawn by us, so that his claims from the resale pursuant to Clauses 8.6 to 8.8 shall pass to us.

8.6 The Buyer hereby assigns to us all claims arising from the resale of the goods subject to retention of title, including within the framework of contracts for work and services or contracts for the delivery of movable goods to be manufactured or produced, together with all ancillary rights. They serve to the same extent as our security for the reserved goods. The Buyer shall only be entitled to assign the claims to third parties with our prior written consent.

8.7 If the Buyer sells the goods subject to retention of title together with other goods not supplied by us, the assignment of the claim from the resale shall only apply to the amount of the invoice value of our goods subject to retention of title at the time of delivery. In the case of the sale of goods in which we have co-ownership pursuant to Section 8.2 or 8.3, the assignment of the claims shall apply in the amount of this co-ownership share.

8.8 The Buyer shall be entitled to collect claims arising from the resale in accordance with Clauses 8.5 to 8.7 until revoked.

8.9 If the buyer does not fulfill obligations arising from this contract or other contracts with us or if we become aware of circumstances that reduce his creditworthiness, then

– we may prohibit the resale, treatment or processing of the reserved goods and their mixing or combination with other goods,

– we may withdraw from this contract, in which case the purchaser’s right to possession of the goods subject to retention of title shall expire and we may demand the return of the goods subject to retention of title. We shall then be entitled to enter the buyer’s premises and take possession of the reserved goods at the buyer’s expense and, without prejudice to the buyer’s payment and other obligations, to realize them at the best possible price by private sale or by auction. We shall offset the proceeds of the sale against the buyer’s liabilities after deduction of any costs incurred, and we shall pay him any surplus,

– the buyer must inform us on request of the names of the debtors of the claims assigned to us so that we can disclose the assignment and collect the claims. All proceeds due to us from assignments shall be forwarded to us immediately upon receipt if and as soon as claims on our part against the buyer are due,

– we shall be entitled to revoke the direct debit authorization granted.

8.10 If the value of the securities to which we are entitled exceeds the claims by more than 20% in total, we shall release securities of our choice at the buyer’s request.

9. Place of performance, applicable law, place of jurisdiction

9.1 The place of performance for our deliveries is the respective place of dispatch of the goods. The place of performance for all obligations of the Buyer shall be St. Georgen/Black Forest.

9.2 The relationship between us and the Buyer shall be governed by the law of the Federal Republic of Germany.

9.3 The place of jurisdiction for all disputes in connection with the delivery transaction is, at our discretion, Villingen-Schwenningen or the buyer’s registered office; for legal action brought by the buyer, Villingen-Schwenningen shall be the exclusive place of jurisdiction. Statutory regulations or exclusive jurisdictions remain unaffected. This jurisdiction agreement does not apply to customers who are not merchants.

10. Final provisions

10.1 Amendments and supplements to this contract, including this written form clause, must be made in writing to be effective. The same applies to ancillary and additional agreements.

10.2 If the Buyer is a merchant within the meaning of the statutory provisions, as well as in the case of legal entities under public law and special funds under public law, our registered office is agreed as the place of jurisdiction. However, we are also entitled to sue the Buyer at the court of his place of residence.

10.3 The law of the Federal Republic of Germany shall apply; the application of the UN Convention on Contracts for the International Sale of Goods is hereby excluded.

10.4 Should individual provisions be or become invalid or contain a loophole, the remaining provisions shall remain unaffected.

Status September 2017