§ 1
Scope
These general terms and conditions are applicable to all deliveries and performance carried out by us on behalf of our contractual partner. They shall also apply for all future deliveries and performance carried out by us on behalf of our contractual partner insofar as he is a legal person under public law, a legal separate estate or a trader and the agreement is a component part of his business.
Our general terms and conditions shall apply exclusively. The validity of any deviating or supplementary terms and conditions of the contractual partner are expressly excluded. The terms and conditions of the contractual partner require our written approval to be deemed valid in individual cases.
§ 2
Conclusion of agreement
Our tenders are always subject to confirmation and are not binding. In the absence of any another agreement, the delivery agreement comes into effect with the order placed by the contractual partner or the commencement of deliveries by our company.
In the event that we confirm acceptance of the order in writing, our confirmation of order is authoritative for the scope of the delivery.
§ 3
Prices and terms of payment
The prices quoted are applicable for delivery from our stores and are net prices subject to costs for packaging, freight, installation, postage, insurance expenses, any bank charges and ancillary costs.
The legally valid rate of value added tax is not included in our prices and shall be charged at the rate valid on the day the invoice is issued and itemised in the invoice.
Our invoices shall be paid net immediately or on the date set down in the invoice.
In the event that the contractual partner is a trader and the agreement is a component part of his business, we shall be entitled to demand maturity interest at a rate of 4% above the current interest rate of the German banks without the requirement of previous reminders.
§ 4
Rights of retention and set-off
In the event of default on payments, we are entitled to make further deliveries dependent upon the payment in full of outstanding payments.
Furthermore, we are also entitled to refuse to perform services in the event that circumstances occur subsequent to conclusion of agreement which give rise to fears that the counter-performance of the contractual partner will not be concluded in time or in its entirety unless the contractual partner effects the performance of provides sufficient security. This shall particularly apply if, subsequent to conclusion of agreement, our credit insurer has refused to insure the purchase price for payment of the goods to be delivered on the grounds that the contractual partner is not credit-worthy. Setting-off against counter-claims of the contractual partner which aredisputed or not legally established or not mature for judgement is excluded. In the event that the contractual partner is a trader and the agreement is a component part of his business, his complaints of defects shall neither affect the obligation to pay nor the time of payment and the contractual partner waives his rights to refuse performance and his rights of retention unless we are guilty of gross violation of agreement or the basis of the counter-claims of the contractual partner for refusing performance or rights of retention are undisputed, legally established or mature for judgement.
§ 5
Retention of title
We retain title of the goods delivered until full settlement of all demands arising in connection with this agreement including those from cheques and bills of exchange as well as recourse claims based on bills of exchange or cheques resulting from cheques or bills of exchange as payment. At payments made in the so-called cheque/bill of exchange procedure, we shall retain title to the goods delivered until the risk of recourse from the bill of exchange we have provided has expired.
In the event that the contractual partner is a trader and the agreements concluded with our company are component parts of his business, we shall furthermore retain title to the goods delivered until full payment of all demands arising in connection with the business relationship.
The contractual partner carries out processing or reforming of the goods delivered on our behalf without any obligation arising for our company from his actions. In the event that the contractual partner, combines, mixes or processes the goods delivered with other goods, we shall become co-owners of the resulting goods. Our share of ownership shall be in proportion to the value of the delivered goods compared to the newly manufactured goods. Combining, mixing or processing of the goods delivered is permissible in the normal course of business provided that the above-mentioned rights of security are not violated.
The contractual partner may sell the goods delivered and the goods resulting from the processing as described in the preceding provision - hereafter mentioned as reserved goods - in the orderly process of business insofar as he assures the extended retention of title (assignment against claims pursuant to the following provision). Any other form of disposal, in particular pledging, leasing, loaning or chattel mortgaging is not permitted.
The contractual partner herewith assigns all claims to our company which have arisen or will arise from the sale or other usage of the reserved goods. Our company accepts this assignment. Insofar as the reserved goods were in our co-ownership, the assignment shall cover only part of the claim in proportion to our co-ownership.
The contractual partner is only empowered to redeem the assigned claim in the normal course of business and this empowerment can be revoked. Revocation may only be carried out in the event that the contractual partner does not correctly fulfil his contractual obligations. In this case, the contractual partner shall notify the debtor of the assignment at our demand. We are also entitled to reveal the extended retention of title to the contractual partner's customers.
The contractual partner's rights of disposal over the reserved goods and to process, combine and mix them and to redeem the assigned claims expires upon non-adherence to the terms of payment, at unauthorised disposal, protested bills of exchange and cheques, and in the event of insolvency proceedings being opened against the contractual partner. In these cases, we are entitled to take possession of the reserved goods without giving notice or resigning from the agreement, and the contractual partner is obliged to hand over the goods immediately. Enforcement of retention of title does not constitute resignation from the agreement insofar as the consumer credit law is not applicable.
In the event that the sureties provided to us by the contractual partner exceed our claims against him by more than 20%, we are obliged to release the excess sureties upon the request of the contractual partner in any way he chooses.
Imminent or executed attachment of the reserved goods by third parties must be communicated to us by the contractual partner immediately in writing with all documentation required for an intervention. The costs resulting from the intervention are borne internally by the contractual partner.
§ 6
Deliveries
Insofar as nothing contrary is stated in the confirmation of order, delivery is from our stores.
The agreed delivery schedule commences in principle at conclusion of agreement but not, however, until the contractual partner has supplied all the documentation required from him plus any advance payments. The delivery schedule shall be deemed as adhered to when the goods have left our stores by this time or the contractual partner has been given notice of delivery insofar as deliveries cannot be made due to the fault of the contractual partner.
The delivery schedule shall be extended by a reasonable period in the event of force majeuere or the occurrence of unusual events such as revolution, strikes, lock-outs, fire, seizure, embargo, limitations to fuel consumption imposed by national or local legislation, self-deliveries which are false or carried out too late insofar as these events are not the responsibility of our company and we have not been able to prevent these events in spite of all our efforts and these events have an effect on the fulfilment of the agreement. In the event that the extension of the delivery schedule due to these events is unreasonable, the contractual partner is entitled to resign from the agreement after a reasonable period has been granted and fruitlessly expired or, insofar as the contractual partner is interested in part deliveries, to resign from the part of the agreement not fulfilled.
In the event that we are in default on deliveries, the contractual partner is entitled to resign from the agreement after a reasonable period has been granted with threat of refusal and this period has fruitlessly expired or, insofar as the contractual partner is interested in part deliveries, to resign from the part of the agreement not fulfilled. Further claims of the contractual partner - in particular claims for compensation for non-fulfilment or default - are excluded insofar as nothing else is stipulated in section 7.
Delivery before expiry of the delivery schedule and partial deliveries are permissible insofar as contrary interests of the contractual partner are not unreasonably impaired.
§ 7
Guarantee
We are liable for defects in the goods delivered - which includes missing assured characteristics - in accordance with the following provisions from which lamps, glass components and other parts subject to wear are excluded.
Complaints due to incomplete or wrong deliveries or complaints about apparent deficiencies must be reported to us immediately in writing following delivery, otherwise the goods supplied are deemed as approved unless we are guilty of fraud.
Insofar as the contractual partner is a trader and the contract is a component part of his business these conditions are supplemented by §§ 337 and 338 of the HGB*.
Our guarantee performance is restricted to our obligation to either correct the deficiencies complained of by the contractual partner free of charge and in good time or to supply a substitute delivery free of deficiencies according to our choice.
The contractual partner shall return the goods delivered with deficiencies for repair or replacement at his own risk. Replaced goods or parts thereof pass into or remain in our possession.
In the event that the repair or replacement fails, the contractual partner is entitled to a reduction in price or to resign from the agreement.
Further claims raised by the contractual partner, in particular in connection with damages to goods which are not contractual objects, or loss of profits, or subsequent costs or similar claims are excluded insofar as not otherwise regulated by the following provision.
§ 8
Liability
The contractual partner is entitled to no other or further contractual or legal claims against us as granted to them in these general terms and conditions of tender, delivery and payment.
or gross negligence
Our liability is restricted in each case - in particular due to responsibility for faults incurred during contractual negotiations, violation of ancillary obligations, tortious acts, impossibility of performance and delays - to intent and gross negligence and deliberate violation of essential contractual obligations (cardinal obligations) and the absence of assured characteristics.
We are liable for cases of intent, gross negligence or the absence of assured characteristics to the full amount, otherwise our liability is restricted to the replacement of foreseeable damages or damages typical for the agreement.
In the event that we have covered the risk for damages typical for the agreement through a third party liability insurance, our liability is limited to the performance of the this insurance insofar as the contractual partner is a trader and the agreement is a component part of his business.
Insofar as the insurer is not obliged to indemnify we shall pay compensation up to the limit of the insured sum.
The contractual partner is obliged to draw our attention to the danger of unusually high damages insofar as we neither know or must know about them.
Regardless of the above-mentioned limitations to our liability, the liability to compensate in accordance with the legislation regulating liability for defective products dated 15.12.1989 in the version valid from time to time remains applicable. This shall also apply in the event that fulfilment of the agreement was impossible from the very beginning.
§ 9
Place of fulfilment, place of jurisdiction, applicable law
Place of fulfilment for all claims arising from the business relationship is D-72393 Burladingen insofar as the contractual partner is a trader within the meaning of commercial law or a legal person under public law.
Place of jurisdiction for all disputes arising from the business relationship is the district court with jurisdiction over our headquarters, insofar as the ordering party is a trader within the meaning of commercial law or a legal person under public law.
All contractual and business relationships between the contractual partner and our company are deemed exclusively subject to the laws of the Federal Republic of Germany and exclude the regulations contained in international agreements, in particular the Hague Convention Relating to a Uniform Law on the International Sale of Goods and the United Nations Commission for International Trade Law.
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