§ 1 Scope
(1) For all contracts concluded by us with a customer for our deliveries and services as well as for related pre-contractual obligations, these General Terms and Conditions (GTC) shall apply exclusively in business transactions, unless otherwise expressly agreed in writing. Other terms and conditions shall not become part of the contract, even if we do not expressly object to them. This also applies if we provide our services to the customer without reservation in the knowledge of conflicting or deviating terms and conditions or if reference is made to them in individual correspondence.
(2) Even if, in the case of ongoing business relationships, no reference is made to this again when concluding similar contracts, our General Terms and Conditions shall apply exclusively in the version available under General Terms and Conditions when the customer commissions, unless the contracting parties agree otherwise in writing. Upon request, the current version of the GTC will also be sent to the customer free of charge in printed form.
(3) These terms and conditions only apply to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).
§ 2 Conclusion of contract
(1) Our offers are subject to change and non-binding, unless the offer is designated as binding in writing. The customer is bound by declarations on the conclusion of contracts (contract offers) for three weeks.
(2) A legal obligation is only established by a contract signed by both parties or our written order confirmation, as well as by the fact that we begin to provide services in accordance with the contract. We may request written confirmations of verbal contractual declarations by the customer.
§ 3 Subject matter of the contract
(1) The scope, type and quality of the deliveries and services shall be determined by the contract signed by both parties or our order confirmation, otherwise by our offer. Other information or requirements shall only become part of the contract if the contracting parties agree to this in writing or if we have confirmed them in writing. Subsequent changes to the scope of services require a written agreement or our express written confirmation.
(2) Product descriptions, illustrations and technical data are service descriptions, but not guarantees. A guarantee requires an express written declaration.
(3) We reserve the right to make minor changes to services, provided that they are insignificant changes in services that are reasonable for the customer. In particular, customary deviations in quality, quantity, weight or other deviations are to be accepted by the customer, even if he refers to brochures, drawings or illustrations when ordering, unless expressly agreed as binding quality.
§ 4 Time of performance, delays, partial services, place of performance
(1) Information on delivery and service times is non-binding, unless we have designated them as binding in writing. All delivery and delivery Performance deadlines are subject to correct and timely self-delivery. Delivery periods shall commence with the dispatch of the order confirmation by us, but not before all commercial and technical questions between the customer and us have been clarified and the customer has fulfilled all obligations incumbent upon him (e.g. provision of necessary official permits; releases or payment of agreed down payments).
(2) Delivery and service deadlines shall be extended by the period in which the customer is in default of payment under the contract and by the period in which we are prevented from delivering or performing the service by circumstances for which we are not responsible, and by a reasonable start-up period after the end of the impediment. These circumstances also include force majeure, shortages of raw materials on the relevant raw material markets, delays by our suppliers and industrial disputes. Deadlines shall also be deemed to have been extended by the period in which the customer fails to provide cooperation in breach of contract, e.g. does not provide information, does not provide access, does not provide a provision or does not make employees available.
(3) If the contracting parties subsequently agree on other or additional services that affect agreed deadlines, these deadlines shall be extended by a reasonable period of time.
(4) Reminders and deadlines set by the customer must be made in writing to be effective. A grace period must be reasonable. A period of less than two weeks is only appropriate in cases of particular urgency.
(5) We may provide partial services insofar as the delivered parts can be used sensibly by the customer. We reserve the right to make excess or short deliveries of up to 5% of the scope of delivery.
(6) Agreed delivery dates shall be deemed to have been met if the goods have been handed over to the transport person on the agreed delivery date or if we have notified us that they are actually ready for dispatch.
(7) If we are not (finally) supplied by our supplier himself, although we have carefully selected him and the order meets the requirements of our delivery obligation, we shall be entitled to withdraw from the contract in whole or in part in relation to the customer if we notify the customer of our non-delivery and - to the extent permissible - offer the assignment of the claims to which we are entitled against the supplier.
(8) The place of performance of training and consulting services is the place where the training / consulting is to be provided. In all other respects, our registered office is the place of performance. § 5 Packaging, shipping, transfer of risk, insurance
(1) Our deliveries are packaged at the customer's expense in a professional and customary manner.
(2) The risk is transferred to the customer as soon as the product has left our factory or distribution warehouse. This also applies to partial deliveries, deliveries within the scope of subsequent performance and if we assume further services, such as shipping costs or delivery. Insofar as acceptance is to be carried out in the case of a contract for work and services, the risk shall pass upon acceptance.
(3) The selection of the shipping method, the carrier and the transport route is made by us, unless we have written specifications from the customer. In making this selection, we are only liable for intent or gross negligence.
(4) At the express request of the customer, the delivery shall be insured at the customer's expense against the risks specified by him - as far as possible for us with reasonable effort.
§ 6 Prices, remuneration, payment, set-off
(1) Unless otherwise agreed by the contracting parties, all prices shall apply from our registered office. All prices and remuneration are net prices plus the applicable statutory value added tax and any other statutory charges in the country of delivery as well as plus travel costs, expenses, packaging, shipping and, if applicable, transport insurance. Additional services requested by the customer will be invoiced on a time and material basis.
(2) Unless otherwise agreed by the contracting parties, payments are due without deduction immediately after the service has been provided and the invoice has been received by the customer and are payable within 14 days, provided that a sufficient credit limit of the trade credit insurer is available. If the credit limit is insufficient, we reserve the right to demand payment in advance.
(3) Bills of exchange and cheques shall not be accepted as a matter of principle, otherwise only on account of payment.
(4) In the event of default in payment, the customer shall pay interest at a rate of eight percentage points above the applicable base interest rate. The right to assert any further damage caused by delay remains unaffected.
(5) If the customer's default lasts longer than 30 calendar days, if he allows bills of exchange or cheques to be protested or if an application is made for the opening of insolvency proceedings against his assets or comparable proceedings under another legal system, we shall be entitled to declare all claims against the customer due immediately, to withhold all deliveries and services and to assert all rights arising from retention of title.
(6) The customer may only offset claims that are undisputed by us or have been legally established. Except in the area of § 354 a HGB, the customer may only assign claims arising from this contract to third parties with our prior written consent, which may not be unreasonably refused. The customer is only entitled to a right of retention or the defence of non-performance of the contract within the respective contractual relationship.
(7) We reserve the right (if the goods or services are not to be delivered or rendered within four months of conclusion of the contract) to increase our prices accordingly if cost increases occur after conclusion of the contract, in particular due to collective bargaining agreements and material price increases. We will provide proof of this to the customer upon request.
(8) In the case of a purchase price in a foreign currency, the customer bears the risk of a deterioration in the exchange ratio of the currency against the euro for the period from the conclusion of the contract.
§ 7 Retention of title
(1) Our services shall remain our property until full payment of all claims to which we are entitled against the customer arising from the business relationship. Receivables also include receivables from cheques and bills of exchange as well as receivables from current accounts.
(2) The customer is obliged to treat the goods subject to retention of title with care for the duration of the retention of title. In particular, he is obliged to insure the goods adequately at replacement value at his own expense against fire, water and theft damage. The customer hereby assigns to us all claims for compensation arising from this insurance. If an assignment is not permitted, the customer hereby irrevocably instructs his insurer to make any payments only to us. Further claims by us remain unaffected. Upon request, the customer must provide us with proof that the insurance has been taken out.
(3) The customer is only permitted to sell the goods subject to retention of title in the ordinary course of business. The customer is not entitled to pledge the goods subject to retention of title, to assign them as security or to make other dispositions that endanger our property. In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing and provide all necessary information, inform the third party about our ownership rights and cooperate in our measures to protect the goods subject to retention of title. The customer shall bear all costs for which he is responsible, which must be incurred to cancel the seizure and to replace the goods, insofar as they cannot be collected from the third party.
(4) The customer hereby assigns to us the claims arising from the resale of the goods with all ancillary rights, regardless of whether the goods subject to retention of title are resold without or after processing. If an assignment is not permitted, the customer hereby irrevocably instructs the third-party debtor to make any payments only to us. The customer is revocably authorized to collect the claims assigned to us on our behalf in trust. The amounts collected are to be paid to us immediately. We may revoke the customer's collection authorization as well as the customer's entitlement to resell if the customer does not properly meet his payment obligations to us, is in default of payment, suspends his payments or if the opening of insolvency proceedings against the customer's assets is applied for. A resale of the receivables requires our prior consent. With the notification of the assignment to the third-party debtor, the customer's power of collection expires. In the event of revocation of the power of collection, we may demand that the customer discloses the assigned claims and their debtors, provides all information necessary for collection, hands over the associated documents and informs the debtors of the assignment.
(5) In the event that the customer's receivables from the resale are included in a current account, the customer hereby also assigns to us his claim from the current account against his customer, in the amount of the purchase price including value added tax, which was agreed for the resold reserved goods.
(6) If we assert our claims in accordance with § 6 para. 5, the customer must immediately grant us access to the reserved goods, send us a detailed list of the existing reserved goods, separate the goods for us and return them to us at our request.
(7) The processing or transformation of the goods subject to retention of title by the customer shall always be carried out on our behalf. The customer's expectant right to the goods subject to retention of title shall continue to apply to the processed or transformed item. If the goods are processed, combined or mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivered goods to the other processed items at the time of processing. The customer keeps the new items for us. In all other respects, the same provisions shall apply to the item resulting from processing or transformation as to the goods subject to retention of title.
(8) At the customer's request, we are obliged to release the securities to which he is entitled to the extent that the realizable value of the collateral, taking into account customary bank valuation discounts, exceeds our claims from the business relationship with the customer by more than 10%. The valuation is based on the invoice value of the goods subject to retention of title and the nominal value of receivables.
(9) In the case of deliveries of goods to other jurisdictions in which the retention of title regulation pursuant to this § does not have the same security effect as in the Federal Republic of Germany, the customer hereby grants us a corresponding security interest. If further declarations or actions are required for this, the customer will make these declarations and take actions. The customer shall cooperate in all measures that are necessary and conducive to the effectiveness and enforceability of such security interests.
§ 8 Contractual obligation and termination of contract
(1) In the event of a breach of duty on our part, regardless of the legal reason (e.g. in the event of withdrawal, claim for damages instead of performance, termination for good cause), the customer may only prematurely terminate the exchange of services in addition to the statutory requirements under the following conditions: a) The breach of contract must be specifically notified. The rectification of the disruption is to be demanded with a deadline. In addition, it is to be threatened that after the unsuccessful expiry of this period, no further services will be accepted with regard to the complained disruption and thus the exchange of services will be partially or completely terminated. (b) The period within which the disturbance is rectified must be reasonable; A period of less than two weeks is only appropriate in cases of particular urgency. In the event of a serious and final refusal to perform or under the other legal requirements (§ 323 para. 2 BGB), the setting of a deadline may be omitted. c) The termination of the exchange of services (in part or in full) due to the failure to remedy the disruption can only be declared within three weeks after the expiry of this period. The deadline is suspended for the duration of negotiations.
(2) The customer may only demand the rescission of the contract due to a delay in performance if we are solely or predominantly responsible for the delay, unless it is not reasonable for the customer to adhere to the contract due to the delay due to a balancing of interests.
(3) All declarations in this context must be made in writing in order to be effective.
(4) Termination in accordance with § 649 BGB remains permissible in accordance with the statutory provisions.
(5) We may terminate the contractual relationship with immediate effect if the customer has provided incorrect information about the facts determining his creditworthiness or has finally stopped his payments or if proceedings are underway against him for the submission of an affidavit or if insolvency proceedings or comparable proceedings have been opened against his assets under another legal system or if an application for the opening of such proceedings has been filed unless the customer makes immediate advance payment.
§ 9 General obligations of the customer
(1) The customer is obliged to have all our deliveries and services inspected by an expert employee in accordance with § 1 para. 1 immediately upon delivery or provision or as soon as they are made available in accordance with the provisions of commercial law (§ 377 HGB) and to notify recognizable and/or recognized defects immediately in writing with a precise description of the defect.
(2) The customer acknowledges that we are dependent on the comprehensive cooperation of the customer for a successful and timely execution of deliveries and services owed by us. He therefore undertakes to provide all information necessary for the proper performance of the service in a timely and complete manner.
(3) The customer undertakes to thoroughly test our deliveries and services for usability in the specific application before he begins productive use, as well as to carry out a functional test before delivery of his products to his customer. This also applies to software and other delivery items that the customer receives free of charge as an addition, within the scope of the warranty or a maintenance contract.
(4) The customer must back up data that may be affected, negatively influenced or endangered by our services in machine-readable form at intervals appropriate to the application and thus ensure that they can be restored with reasonable effort.
(5) The customer shall take reasonable precautions in the event that we do not properly provide our deliveries and services in whole or in part (e.g. through data backup, fault diagnosis, regular checking of results, emergency planning).
§ 10 Restrictions on use, indemnification
(1) Unless otherwise expressly agreed in writing, our services (in particular goods or software purchased or programmed by us) are not intended for use in life-sustaining or life-supporting equipment and systems, nuclear facilities, military purposes, aerospace or for other purposes in which a failure of the product can, in reasonable estimates, threaten life or cause catastrophic consequential damage, certain.
(2) If the customer violates paragraph 1, this is done at his own risk and under the sole responsibility of the customer. The customer hereby indemnifies and holds us and the respective manufacturer harmless from any liability arising from the use of goods in such contexts upon first request in full, including the costs of appropriate legal defense.
§ 11 Material defects
(1) Our services have the agreed quality and are suitable for the contractually stipulated use, in the absence of an agreement for normal use. In the absence of an express further agreement, our services shall only be deemed to be free of defects in accordance with the state of the art. The customer is solely responsible for the suitability and security of our services for a customer-side application. An insignificant reduction in quality is not taken into account.
(2) We guarantee that the delivered goods have the characteristics that have been specified in writing by the manufacturer or by mutual agreement in verifiable technical parameters. The delivered goods are only intended for the purposes specified by us or the respective manufacturer. The agreed quality according to § 434 BGB applies exclusively to the specifications of the respective manufacturers.
(3) The warranty is excluded:
a) if our products are not properly stored, installed, put into operation or used by the customer or third parties,
(b) natural wear and tear;
(c) in the event of improper maintenance;
(d) in the event of the use of unsuitable equipment;
e) in the event of damage caused by repairs or other work carried out by third parties that have not been expressly approved by us. The burden of presentation and proof with regard to the non-existence of these grounds for exclusion lies with the customer. The customer's rights in respect of defects also presuppose that he has duly complied with his obligations to give notice of defects and inspect them in accordance with § 9 para. 1 and that he has given written notice of hidden defects immediately after discovery.
(4) In the event of material defects, we may first remedy the defects. Subsequent performance shall be effected at our discretion by remedying the defect, by delivering goods or providing services that do not have the defect, or by showing us ways to avoid the effects of the defect. Due to a defect, at least two attempts at rectification must be accepted. An equivalent new or equivalent previous product version that does not have the defect shall be accepted by the customer as supplementary performance if this is reasonable for him.
(5) The customer shall support us in the error analysis and rectification of defects, in particular by describing any problems that arise in concrete terms, informing us comprehensively and granting us the time and opportunity required to remedy the defect.
(6) If we incur additional costs as a result of our services being changed or incorrectly served, we may demand that these be reimbursed. We may demand reimbursement of expenses if no defect is found. The burden of proof lies with the customer. § 254 BGB applies accordingly. If the expenses necessary for the purpose of remedying the defect, in particular transport, travel, labor and material costs, increase, we shall not be required to bear these costs insofar as the expenses increase due to the fact that the delivery item has subsequently been taken by the customer to a place other than the delivery address, unless the shipment corresponds to his contractual and intended use. Personnel and material costs claimed by the customer due to the defectiveness of our services are to be calculated on a cost price basis.
(7) If we finally refuse subsequent performance or if it finally fails or is unreasonable for the customer, he may either withdraw from the contract or reduce the remuneration appropriately within the framework of the statutory provisions in accordance with the provisions of § 9 and additionally demand damages or reimbursement of expenses in accordance with § 13 in the event of fault on our part. The claims become statute-barred according to § 14.
§ 12 Defects of title
(1) Unless otherwise agreed, we are obliged to provide our services only in the country of the place of delivery free of industrial property rights and copyrights of third parties (hereinafter: property rights). If a third party asserts justified claims against the customer due to the infringement of property rights by services provided by us and used in accordance with the contract, we shall be liable to the customer within the period specified in § 14 as follows:
(2) We shall, at our discretion and at our expense, either obtain a right of use for the services in question, modify them in such a way that the property right is not infringed or replace them. If this is not possible for us under reasonable conditions, the customer shall be entitled to the statutory rights of withdrawal or reduction. The customer cannot demand compensation for futile expenses.
(3) Our obligation to pay damages shall be governed by § 13 within the framework of the statutory provisions.
(4) Our above-mentioned obligations shall only exist if the customer notifies us immediately in writing of the claims asserted by the third party, does not acknowledge an infringement and reserves the right to take all defensive measures and negotiate a settlement. If the customer discontinues the use of the delivery for damage mitigation or other important reasons, he is obliged to inform the third party that the cessation of use is not associated with an acknowledgement of an infringement of property rights.
(5) Claims of the customer are excluded insofar as he is responsible for the infringement of property rights. Claims of the customer are also excluded insofar as the infringement of property rights is caused by special requirements of the Customer, caused by an application that we did not foresee or by the fact that the delivery is modified by the customer or used together with products not supplied by us.
(6) In all other respects, the provisions of § 12 shall apply accordingly.
(7) Further or other claims of the customer against us and our vicarious agents due to a defect of title than those regulated here are excluded.
§ 13 Liability
(1) We shall only pay damages or reimbursement of futile expenses, regardless of the legal reason (e.g. from legal or quasi-legal obligations, material and legal defects, breach of duty and tort) only in the event of fault on our part and to the following extent: a) Liability in the event of intent and under warranty is unlimited. b) In the event of gross negligence, we shall be liable in the amount of the typical and foreseeable damage. c) In other cases, we are only liable in the event of a breach of an essential contractual obligation, in the event of claims for defects and in the event of default, namely compensation for the typical and foreseeable damage. In this regard, liability is limited to twice the agreed remuneration of the order/part of the contract affected by the damage. According to case law, essential contractual obligations (cardinal obligations) are those obligations, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the contractual partner regularly relies and may rely.
(2) In the event of injury to life, limb and health and in the event of claims arising from the Product Liability Act, only the statutory provisions shall apply.
(3) The objection of contributory negligence remains open to us.
§ 14 Statute of limitations
(1) The limitation period shall be a) one year from delivery of the goods for claims arising from repayment of the purchase price and withdrawal or reduction; however, if these claims are based on defects duly notified within an unexpired period, not less than three months from the date of submission of the effective declaration of withdrawal or reduction;
b) in the case of other claims arising from material defects, one year, beginning with delivery of the goods; c) in the case of claims arising from defects of title, one year if the defect of title exists in a right in rem of a third party on the basis of which the goods can be demanded, the statutory limitation periods shall apply; d) in the case of other claims for damages or reimbursement of futile expenses, two years, beginning from the date, in which the customer has become aware of the circumstances giving rise to the claim or should have become aware of them without gross negligence. The limitation period shall commence at the latest upon expiry of the statutory maximum periods (§ 199 para. 3, para. 4 BGB).
(2) However, in the case of damages and reimbursement of expenses arising from intent, gross negligence, guarantee, fraudulent intent as well as in the event of injury to life, limb and health and claims arising from the Product Liability Act, the statutory limitation periods shall always apply. § 15 Export
(1) As a matter of principle, our services are intended to remain in the country of delivery agreed with the customer. The re-export of contractual products may be subject to approval by the customer. In particular, they are subject to German, European and American export controls and embargo regulations. The customer must independently inquire about these regulations with the competent authorities. We assume no liability for export permits and suitability.
(2) In any case, it is the customer's responsibility, on his own responsibility, to obtain the necessary permits from the relevant foreign trade authorities before exporting such products. Any further delivery of contractual products by customers to third parties, with or without our knowledge, requires the transfer of the export licence conditions at the same time. The customer is liable to us for proper compliance with these terms and conditions.
§ 16 Confidentiality, Data Protection, Manufacturer Reporting
(1) The contracting parties undertake to treat as confidential all objects (documents, information, software) received or becoming known to them by the other contracting party before or during the execution of the contract, which are legally protected or obviously contain business or trade secrets or are marked as confidential, even beyond the end of the contract, unless they are publicly known without violating the duty of confidentiality or there is no legally protected interest of the contractual partner. The contracting parties shall store and secure these items in such a way that misuse by third parties is excluded.
(2) The contracting parties shall make the contractual objects accessible only to employees and other third parties who require access to perform their official duties. He instructs these persons about the need for secrecy of these objects.
(3) We process the customer's data required for business transactions in compliance with data protection regulations.
§ 17 EC import sales tax
(1) If the customer is domiciled outside Germany, he is obliged to comply with the regulation of the import sales tax of the European Union. This includes, in particular, the disclosure of the VAT identification number and, if necessary, its change to us without a separate request. Upon request, the customer is obliged to provide us with the necessary information regarding his capacity as an entrepreneur, regarding the use and transport of the delivered goods as well as with regard to the statistical reporting obligation.
(2) The customer is also obliged to reimburse us for the expenses and costs incurred by us due to omitted or inadequate information on import sales tax.
(3) Any liability on our part arising from the consequences of the customer's information on import sales tax or the relevant data on this is excluded, unless there is gross negligence or intent on our part. We are under no obligation to verify customer information in this regard.
§ 18 Social clause When determining the amount of any claim for compensation to be fulfilled by us arising from or in connection with this contract, our economic circumstances, type, scope and duration of the business relationship, any contributions to causation and/or fault by the customer and a particularly unfavorable installation situation of the goods must be taken into account appropriately in our favor. In particular, the compensation, costs and expenses that we are to bear must be in reasonable proportion to the value of the supplier part.
§ 19 Written form All changes and additions to the contract must be made in writing to be effective. The contracting parties shall also satisfy this requirement by sending documents in text form, in particular by fax or e-mail, unless otherwise stipulated for individual declarations. The written form agreement itself can only be cancelled in writing.
§ 20 Choice of law The law of the Federal Republic of Germany applies.
§ 21 Place of jurisdiction The place of jurisdiction for all disputes arising from and in connection with this contract is Munich, provided that the customer is a merchant, a legal entity under public law or a special fund under public law or if he is equivalent to such a fund or if he has his registered office or branch abroad. We are also entitled to bring an action at the customer's registered office and at any other permissible place of jurisdiction.
§ 22 Severability clause Should any provision of these terms and conditions be or become invalid or should these terms and conditions be incomplete, the validity of the remaining provisions shall remain unaffected. The contracting parties shall replace the invalid provision with a provision that comes as close as possible to the meaning and purpose of the invalid provision in a legally effective manner. The same applies to gaps in the contract.
