The following general terms and conditions of business apply to all agreements, deliveries and other business relations unless they have been amended or excluded with the Seller's express consent. Any provisions that deviate from the provisions below or the statutory provisions, are in conflict with them or supplement them - in particular in terms and conditions of purchase of the Purchaser – shall only be binding upon the Seller, even if it is aware of them, if they have been confirmed by the Seller in writing. The delivery of goods, performance of services or acceptance of payments without reservation shall not imply an acknowledgement of any deviating provisions on the part of the Seller.
These general terms and conditions of business shall only apply to entrepreneurs, legal entities governed by public law or special public law funds within the meaning of Sec. 310 (1) German Civil Code (BGB).
2. Offers and orders
All offers are in all cases subject to change without notice. We reserve the right to undertake any technical modifications, as well as make any changes in the form, colour and/or weight of the goods that fall within the scope of what is reasonable.
In order to execute the order, the Seller shall be entitled to deliver compatible substitute models.
An agreement shall only materialise through our written or pre-printed order confirmation or once orders have been executed.
The prices quoted are for delivery ex Gilching, and shall in all cases be subject to the addition of the respective applicable VAT. Postage and packing shall be charged separately.
If the products distributed by the Seller are imported goods, the price agreed in the order confirmation shall be based on the exchange rate of the foreign currency (mostly US dollars) as quoted on the pertinent foreign exchange market on the date of the order confirmation. Should the foreign currency exchange rate change as at the delivery date, the Seller reserves the right to adapt the agreed price in euros in line with the change in the exchange rate.
4. Shipping and passing of risk
The item(s) shall always be shipped at the Purchaser's expense. The shipping route and means of shipping shall, unless otherwise agreed, be chosen by the Seller. The goods shall be insured at the Purchaser's request and at its own expense.
If shipping is delayed at the Purchaser's request or due to fault on the part of the Purchaser, the goods shall be stored at the Purchaser's expense and risk. In such a case, notifying readiness for dispatch shall be deemed equivalent to providing evidence of having shipped the goods.
The risk of accidental destruction or accidental impairment of the goods shall pass to the Purchaser upon the goods being handing over to a freight forwarder or carrier, however no later than upon the goods leaving the warehouse.
5. Terms of payment
Unless anything to the contrary has explicitly been agreed, payment is to be made within 30 days of the invoice date strictly net, so that the agreed amount invoiced is available to the Seller no later than as at the due date. Once the payment period has expired, the Purchaser shall, pursuant to Sec. 286(2)(2) German Commercial Code (BGB), be deemed to be in arrears with payment.
Bills of exchange and cheques can only be accepted by special agreement and only accepted pro solvendo, i.e. so as to discharge the Purchaser's payment obligations arising from the order, as long as the Purchaser covers any expenses involved.
Customers ordering goods for the first time shall only receive the goods in return for cash on delivery or upon advance payment when the first order is delivered.
Customers who fall into arrears with payment shall also receive subsequent deliveries in return for cash on delivery or upon advance payment.
6. Costs of cancellation
Should the Purchaser withdraw from an order placed without being authorised to do so, the Seller may, notwithstanding the option of asserting a actual damage incurred, request 10% of the selling price, however at least an amount of EUR 30.00, on account of the costs incurred in or through processing the order plus any lost profits. It shall be up to the Purchaser to provide evidence of lesser damage.
7. Delivery deadlines, default, impossibility of delivery
The Seller undertakes to endeavour to adhere to the delivery deadlines specified. The expiry of specific delivery deadlines shall not relieve the Purchaser who wishes to withdraw from the contract or request compensation for damage due to non-performance from its obligation to set the Seller an appropriate grace period for providing the services, which needs to amount to at least four weeks, nor from its obligation to declare that it will refuse to accept the services following expiry of the grace period. The grace period needs to be set in writing.
Partial deliveries are admissible to a reasonable extent. The delivery deadline shall be appropriately extended - even if a default has already occurred - if Acts of God occur or any unexpected impediments that are not the Seller's fault have occurred once the contract has been concluded. The latter also applies if such circumstances occur at the premises of the Seller's suppliers and their sub-contractors. The Seller shall not be liable for any default of the delivery or failure to deliver (impossibility) as long as there is no accusation of fault on the part of its vicarious agents or its own suppliers. Otherwise, it shall be liable in accordance with the statutory provisions.
The Seller shall also not be required to vouch for any deliveries that are delayed or do not materialise (impossibility of delivery) due to fault on the part of its own suppliers.
The Purchaser's right to withdraw from the contract following the fruitless expiry of a grace period of at least four weeks set for the Seller shall not be affected thereby.
8. Retention of title
a) The Seller reserves the right of ownership in the goods until such time as all claims against the Purchaser arising from the business relationship, including any claims which may arise in future, also from contracts concluded simultaneously or subsequently, have been settled.
b) In the event of material contractual obligations being infringed, in particular in the case of payment being in arrears, upon issuing a written formal reminder for payment or other warning letter, as the case may be, the Seller shall be entitled to take back the goods, and the Purchaser shall be obliged to return the latter. The Purchaser is to inform the Seller in writing without delay in the event of any seizures of the goods or other interventions by third parties, or any damage to or destruction of the goods.
c) The Purchaser shall be entitled to sell the goods in the orderly course of business, on the prerequisite that the receivables arising from the resale pass to the Seller in line with the following provisions: The Purchaser already at this point assigns to the Seller any receivables, along with any ancillary rights accruing to it from its customer or other third party as a result of the resale, and in fact regardless of whether the goods subject to retention of title are sold on without being processed further or following further processing. The Purchaser shall also remain entitled to collect such receivable following the assignment. The Seller's authority to collect the receivables itself shall not be affected hereby, however the Seller undertakes not to collect the receivable as long as the Purchaser duly complies with its payment obligations. The Seller may require the Purchaser to provide it with details of the receivables assigned and the debtors pertaining thereto, provide any details necessary in regard to collection, hand over the associated documentation, and notify the debtors about the assignments.
d) The goods subject to retention of title shall always be processed and manufactured on behalf of the Seller as the manufacturer within the meaning of Sec. 950 German Civil Code (BGB), however without putting the Seller under any corresponding obligation. The manufactured goods shall be deemed goods subject to retention of title within the meaning of these terms and conditions. Should the goods subject to retention of title be processed or inseparably blended with other items, not belonging to the Seller, the Seller shall acquire co-ownership in the new item pro rata in the proportion of the amount invoiced for the goods subject to retention of title to the amount invoiced for the other, used goods at the time of processing or blending. The resulting co-ownership rights shall be deemed goods subject to retention of title within the meaning of these Terms and Conditions.
e) The Seller undertakes to release any collateral that it is entitled to in so far as their value exceeds the claims to be secured by over 20%, provided that the latter have not yet been settled. It is incumbent upon the Seller to select the collateral to be released.
9. Notification of defects and warranty
The Seller shall only be liable for defects as follows:
a) Following receipt, the Purchaser shall be obliged to examine the goods received without delay in regard to the quantity, quality and assured properties. The goods are to be examined in accordance with the written technical specification agreed with the Seller. In the absence of such a technical specification agreed in writing, the technical specification for the goods provided by the manufacturer shall automatically apply. Any obvious defects shall be notified within a preclusion period of 10 days of receipt of the goods, by means of a written notification addressed to the Seller. The Purchaser shall bear the full burden of proof for any prerequisites for claims, in particular in regard to the defect itself, the date of the defect being noticed and the timeliness of the notification concerning the defect.
b) In the case of justified complaints, which are to be notified to the Seller in writing, defective goods shall either be subsequently improved or replacement goods shall be delivered within a reasonable period of time, at the Seller's option. As regards the question of reasonableness of the grace period, it shall be taken into consideration that, in certain circumstances, the Seller does not manufacture the goods supplied by it itself, but purchases them in foreign countries. Any amount credited to the Purchaser shall only be based on book-keeping reasons, however shall not release the Purchaser from its contractual obligations once subsequent improvement has been provided or a replacement delivery has been made.
c) Should the Purchaser opt to withdraw from the contract due to a defect in title or defect in quality once subsequent fulfilment has failed, it shall not be entitled to assert any additional claim for compensation for damage due to the defect. In the event that the Purchaser opts for compensation for damage once subsequent fulfilment has failed, the Purchaser shall retain the goods if it is reasonable for it to do so. The compensation for damage shall be limited to the difference between the purchase price and the value of the defective goods. This shall not apply if the Seller has brought about the contractual infringement through fraudulent intent.
d) Any technical details provided are only product descriptions, which do not constitute guaranteed and final parameters. The Purchaser shall be required to lay down the necessary specifications in accordance with the application for which the goods are intended, and check the fitness of the goods for the intended purpose independently. The Seller shall only be liable for properties of the goods as regards their fitness for a particular purpose on the proviso that it has provided a corresponding written representation of said properties in the first place.
e) The warranty shall lapse as a result of any modifications or maintenance work undertaken by the Purchaser or a third party unless the Customer provides evidence that there is no relationship of causation between the modification undertaken and the defect which has occurred.
f) Any promotional statements or other public statements, explanations and/or details specified by third parties, in particular in the case of components purchased, shall not constitute any defect in quality. Thus, the Seller's obligation to perform as part of any warranty within the scope of the aforementioned scenario is excluded.
g) Moreover, no guarantee is assumed in the case of natural wear and tear, inappropriate or improper use, defective assembly, use under extraordinary conditions or conditions that reach thresholds of maximum permitted strain or that reach the maximum permitted operating conditions, or where unsuitable equipment is used, or where impairment is attributable to external impact or in the event of interference with electronic components.
h) Any defects attributable to requirements concerning construction and/or materials posed by the Purchaser are also excluded from the warranty.
i) In regard to third party products, the liability shall be limited to the assignment of the liability claims that the Seller is entitled to assert against the supplier of the third party product.
j) The warranty period shall amount to one year as from delivery of the goods. For subsequent improvement it shall amount to three months, unless longer periods are mandatorily stipulated by law.
k) Negotiations between the parties concerning claims on the part of the Purchaser or circumstances giving rise to a claim shall not delay the progress of the period of limitation. Sec. 203 German Civil Code (BGB) shall be waived.
l) All returns need to be notified in advance to the Seller in writing, giving a detailed description of the defect, in order to give the Seller the opportunity in advance to within a reasonable period of time check whether any defects exist, as well as to clarify how any return ought to be best carried out. In any event, the goods initially need to be returned to the Seller free of charge for the Seller, i.e. the cost of any returns shall be the Purchaser's liability until further notice. Should the foregoing regulation not be adhered to, the goods returned cannot be accepted. Should the notification concerning a defect prove to be unjustified, the Purchaser shall bear any costs incurred thereby if it ignored the facts constituting the lack of justification due to gross negligence.
a) The Seller shall only be liable for wilful intent and gross negligence. The liability for other losses incurred in the case of slightly negligent infringement of a principal obligation to perform on the part of the Seller shall be limited to the contractually typical, foreseeable direct average damage. The Seller shall not be liable for slightly negligent infringement of insignificant contractual obligations.
b) In so far as statutorily permissible, the Seller shall not be liable for lost profits, savings that have not materialised, damage arising from claims made against the Purchaser by third parties or any other indirect or consequential damage.
c) The aforementioned limitations of liability shall not affect any claims on the part of the Purchaser arising from product liability. The limitations of liability do not apply in the case of any bodily injury or damage to health or loss of life of the Purchaser attributable to the Seller.
d) Any claims for compensation for damage on the part of the Purchaser due to a defect in the goods shall become statute-barred after one year. The latter shall not apply if the Seller may be reasonably accused of fraudulent intent.
e) In so far as liability is excluded or limited, the latter shall also apply to the personal liability of the employees, staff, legal representatives and vicarious agents.
11. Place of performance, place of jurisdiction, applicable law
a) The place of performance is Munich.
b) Should the Purchaser be a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for any disputes arising shall be the Seller's registered office. The same shall apply if the Purchaser does not have a general place of jurisdiction in Germany or the Purchaser's domicile or usual place of residence is not known as at the date of the action being filed.
c) Should any individual provisions of the agreement with the Purchaser, including these general terms and conditions of business, be or become invalid, in whole or in part, the validity of the remaining provisions shall not be affected thereby. The wholly or partially invalid provision shall be replaced by a provision, the economic outcome of which comes as close as possible to what was intended by the invalid provision.
d) The law of the Federal Republic of Germany shall apply, subject to exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG).