General Terms and Conditions
1. Scope of Application/General
1.1 These General Terms and Conditions (GTC) apply exclusively to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), i.e. natural or legal persons who acquire the goods or services for commercial or professional use.
1.2 The following terms and conditions (GTC) shall apply exclusively to the business relationship with our customers, including information and advice.
Any deviating terms and conditions of the buyer and/or customer - hereinafter referred to as "Customer(s)" - shall only apply if and to the extent that we expressly acknowledge them in writing. In particular, our silence with regard to such deviating terms and conditions shall not be deemed to be an acknowledgement or consent, not even in the case of future contracts.
Our General Terms and Conditions shall apply in place of any terms and conditions of purchase of the customer even if, according to these, the acceptance of the order is provided for as unconditional acceptance of the terms and conditions of purchase, or we deliver after the customer has pointed out the validity of his General Terms and Conditions, unless we have expressly waived the validity of our General Terms and Conditions. The exclusion of the customer's general terms and conditions shall also apply if the general terms and conditions do not contain a separate provision on individual points of regulation. By accepting our order confirmation, the customer expressly acknowledges that it waives its legal objection derived from the terms and conditions of purchase.
1.3 The terms and conditions shall also apply to all future contracts with the customer, even if they are not expressly included again.
1.4 We operate various web portals which are also subject to these General Terms and Conditions. If there are additional special provisions on these web portals, these clauses shall take precedence over these General Terms and Conditions. If, however, the special provisions of the respective websites do not contain any provisions on specific legal issues which are, however, governed by the General Terms and Conditions, the provisions of this General Terms and Conditions shall apply in this respect.
1.5 Insofar as the following refers to claims for damages, this also refers to claims for reimbursement of expenses within the meaning of Section 284 BGB.
2. Information/Advice/Characteristics of the Products and Services/Co-Operation of the Customer
2.1 Information and explanations regarding our products and services provided by us or our sales agents are for information purposes only. They are based exclusively on our experience to date and do not represent any properties or guarantees with regard to our products. The values stated here are to be regarded as average values of our products.
2.2 We only assume an obligation to provide advice expressly by virtue of a written, separate advisory agreement.
2.3 A guarantee shall only be deemed to have been assumed by us if we have designated a property and/or a performance outcome as "legally guaranteed" in writing.
2.4 The customer shall be responsible for the selection of the ordered goods and for the technical equipment that enables the use of our deliveries and services, insofar as the order is not based on a consulting service with a corresponding written purchase recommendation from us that is contractually owed according to clause 2.2 and is generally to be remunerated separately. In the absence of an express agreement to the contrary, we do not guarantee that our products and/or services are suitable for the purpose pursued by the customer.
2.5 The customer is obliged to provide all necessary cooperation, e.g. to provide necessary information, documents and data including access data and test data without delay upon request and to ensure the availability of necessary contact persons.
2.6 If we undertake work at the customer's premises, the customer shall be obliged to provide suitable premises equipped with the necessary technical facilities, including suitable power sources, at its own expense.
2.7 The customer is responsible for regularly backing up his data. In particular, he is obliged to secure his data against loss before installation or maintenance work is carried out by us. Sufficient backup copies must be made of all data provided to us.
2.8 Delays in delivery and performance based on the customer's failure to perform a required act of cooperation shall be borne by the customer.
3. Conclusion of Contract/Scope of Delivery and Performance/Procurement Risk and Guarantee
3.1 Our offers are subject to change without notice unless they are expressly marked as binding or expressly contain binding commitments or the binding nature has otherwise been expressly agreed. They are invitations to the customer to place orders.
Until our acceptance of the order by means of an order confirmation, the customer is bound to his order as a contract application 14 calendar days after receipt of the order by us, insofar as the customer does not regularly have to expect a later acceptance by us (Section 147 BGB). This shall also apply to subsequent orders placed by the customer.
3.2 A contract is only concluded - also in current business transactions - when we confirm the customer's order in writing or in text form (i.e. also by fax or e-mail) by order confirmation. The order confirmation shall only be valid under the condition that outstanding payment arrears of the customer are settled and that a credit check of the customer carried out by us remains without negative information.
In the event of delivery or performance within the binding period of the customer which is the subject of the offer, our order confirmation can be replaced by our delivery, whereby the dispatch of the delivery is decisive.
3.3 The customer must inform us in writing in good time before conclusion of the contract of any special requirements for our products. However, such information does not extend our contractual obligations and liability.
In the absence of an express agreement to the contrary, we are only obliged to deliver the ordered products as goods that can be marketed and approved in the Federal Republic of Germany.
3.4 We are only obliged to perform from our own stock of goods (stock debt).
3.5 The assumption of a procurement risk or a procurement guarantee is not solely based on our obligation to deliver an item that is only determined by its classification.
3.6 We shall only assume a procurement risk within the meaning of Section 276 BGB by virtue of a separate written agreement using the phrase "we assume the procurement risk...".
3.7 The dimensions, weights and technical specifications as well as texts and illustrations listed in our presentation of goods are for approximate guidance only. We reserve the right to make deviations and design changes, in particular in shape, colour and/or weight, within the bounds of what is reasonable, if these are customary quantity or quality tolerances.
Information about product characteristics does not constitute a guarantee, but only a product description. A guarantee only exists if it is expressly agreed in writing.
For various products (e.g. in the case of software), licence conditions of the manufacturer that go beyond these terms and conditions apply. The customer acknowledges these conditions. We point out that violations of the licence conditions may result in claims for damages.
3.8 If the acceptance of the products or their dispatch is delayed for a reason for which the customer is responsible for, we are entitled to demand immediate payment of remuneration or to withdraw from the contract or to refuse performance and to demand damages instead of the entire performance, at our discretion, after setting and expiry of a 14-day extension period. The deadline must be set in writing or in text form. We do not have to refer to the rights arising from this clause again.
In the event of a claim for damages as regulated above, the damages to be paid shall amount to 20% of the net delivery price in the case of purchase contracts or 20% of the agreed net remuneration in the case of service contracts. Both parties reserve the right to prove a different amount of damage or that no damage was incurred. A reversal of the burden of proof is not associated with the above provisions.
3.9 We are entitled to make excess or short deliveries of up to 5% of the agreed delivery quantity. The purchase price shall be adjusted in accordance with the excess or short delivery. Furthermore, we are entitled to deliver products with customary deviations in quality, dimensions, weight, colour and equipment. Such goods shall be deemed to be in conformity with the contract.
3.10 The minimum order value is € 100.00 net. For orders below the minimum order value, we reserve the right not to accept the order and to inform the customer of this in due time or to charge a minimum quantity surcharge of € 12.00 net.
3.11 Unless otherwise stated, we also offer used products for sale on our web portals. Unless otherwise stated, the products are used goods. Under certain circumstances, it should be noted that considerable customs duties are to be expected, for which you as the customer are solely responsible.
The condition and scope of delivery of the used products can be taken from the product descriptions known prior to purchase; we are always available to answer any questions.
4. Delivery/Place of Performance/Delivery Time/Delay in Delivery/Packaging
4.1 Delivery dates are generally non-binding unless a binding delivery date or a binding delivery period has been expressly agreed in writing. In the case of non-binding or approximate (approx., approximately, etc.) delivery dates and deadlines, we shall make every effort to comply with them.
4.2 Delivery and/or performance periods shall commence upon receipt of our order confirmation by the customer, in the absence of such within 5 calendar days after receipt of the customer's order by us, but not before all details of the execution of the order have been clarified and all other prerequisites to be fulfilled by the customer have been met, in particular agreed down payments or securities and necessary cooperation services have been provided in full. The same applies to delivery dates and performance dates. If the customer has requested changes after the order has been placed, a new reasonable delivery and/or performance period shall begin with our confirmation of the change.
4.3 The unloading of the goods is the responsibility of the customer in the event of an agreed delivery and dispatch obligation and shall be at the customer's expense. The customer undertakes to provide suitable access for the delivery truck at the delivery address. He shall ensure that authorized persons are present at the time of delivery and that lifting platforms and similar equipment are available to enable unloading of the goods at the customer's premises.Should a new delivery be necessary due to the fact that no person authorised to accept the delivery is present at the delivery, the customer shall bear the costs incurred by the new delivery.
4.4 If we are in default of delivery for which we are responsible, the customer must first set us a reasonable extension period of at least - unless unreasonable - 28 days for performance. If this period expires fruitlessly, claims for damages due to breach of duty - irrespective of the reason - shall only exist in accordance with the provision in clause 10.
4.5 If no collection date is specified in the order, which we must confirm in order for it to become binding, or if acceptance does not take place on the agreed collection date, we shall, at our discretion, dispatch the goods that are the subject of the contract with a carrier commissioned by us or store the goods that are the subject of the contract at the customer's expense. The packaging, transport and insurance costs incurred (the latter if transport insurance has been agreed) shall be additionally invoiced to the customer upon dispatch.
In the event of storage, the customer shall pay a flat-rate storage fee of 0.1% of the net remuneration per week for the stored goods. Both parties reserve the right to provide evidence of lower or higher expenses, and the customer also reserves the right to provide evidence of a complete lack of expenses.
4.6 If the customer incurs damage due to our delay, he shall be entitled to claim compensation for the delay to the exclusion of any further claims. For each week or part thereof of the delay, such compensation shall amount to 0.2% of the net remuneration for the delayed delivery of goods and/or performance of services as a whole, but not more than 2% of the net remuneration for the total delivery and/or performance of services which, as a result of the delay, are not delivered and/or performed by us in due time or in accordance with the contract. Any further compensation on our part for the damage caused by the delay is excluded. This shall not apply in the event of intentional, grossly negligent or fraudulent action on our part, in the event of claims for injury to life, limb or health, in the event of delay as well as in the event of an agreed fixed delivery date in the legal sense and the assumption of a performance guarantee or a procurement risk in accordance with Section 276 BGB and in the event of mandatory liability under the law.
5. Force majeure/self-delivery
5.1 If, for reasons for which we are not responsible, we do not receive deliveries or services from our sub-suppliers for the performance of our contractual delivery or service despite proper and sufficient coverage prior to the conclusion of the contract with the customer in accordance with the quantity and quality from our delivery or service agreement with the customer (congruent coverage), or if such deliveries or services are not received correctly or in due time, or if events of force majeure of a not insignificant duration (i.e. with a duration of longer than 14 calendar days) occur, we shall inform our customer in good time in writing or text form. i.e. lasting longer than 14 calendar days) occur, we shall inform our customer in due time in writing or in text form. In this case, we shall be entitled to postpone the delivery for the duration of the hindrance or to withdraw from the contract in whole or in part due to the part not yet fulfilled, provided that we have complied with our aforementioned duty to inform and have not assumed the procurement risk or a delivery guarantee. Force majeure shall include pandemic, war, strike, lockout, official interventions, shortage of energy and raw materials, transport bottlenecks or obstacles through no fault of our own, operational hindrances through no fault of our own - e.g. due to fire, water and machine damage - and all other hindrances which, viewed objectively, have not been culpably caused by us.
5.2 If a delivery date or a delivery period has been bindingly agreed and if the agreed delivery date or the agreed delivery period is exceeded due to events according to clause 5.1, the customer shall be entitled to withdraw from the contract due to the part not yet fulfilled after the expiry of a reasonable extension period. Further claims of the customer, in particular claims for damages, are excluded in this case.
5.3 The above provision in accordance with clause 5.2 shall apply accordingly if, for the reasons stated in clause 5.1, it is objectively unreasonable for the customer to continue to adhere to the contract even without a contractual agreement on a fixed delivery date.
6. Dispatch/Transfer of Risk/Acceptance
6.1 In the event of an agreed collection and dispatch obligation, the goods shall travel at the risk and expense of the customer. The conclusion of a transport insurance requires a separate agreement and will be charged to the customer at cost.
6.2 The risk of accidental loss or accidental deterioration shall pass to the customer in the case of an agreed debt to be discharged upon handover of the products to be delivered to the customer, in the case of an agreed debt to be discharged upon handover of the products to the forwarder, the carrier or the undertakings otherwise designated to carry out the shipment, but at the latest upon leaving our works or our warehouse or our branch or the manufacturer's works, unless a debt to be discharged upon delivery has been agreed. The above shall also apply if an agreed partial delivery is made.
In the case of work performances, the customer is obliged to declare acceptance within five working days after handover of our performance. Acceptance shall be deemed to have taken place after ten working days from the handover of the work or upon commissioning (deemed acceptance), unless the customer states the reasons for refusing acceptance in writing within this period. Upon acceptance, the so-called price risk, i.e. the risk of having to produce the work again without further remuneration in the event of its destruction, shall pass to the customer.
6.3 In the absence of any other agreement, we reserve the right to choose the transport route and the means of transport in the case of agreed dispatch. However, we shall endeavour to take into account the customer's wishes with regard to the mode and route of dispatch, without the customer having any claim to this. Any additional costs resulting from this - even in the case of agreed freight-free delivery - shall be borne by the customer, as are the transport and insurance costs.
If dispatch is delayed from the agreed time at the customer's request or through the customer's fault, we shall store the goods at the customer's expense and risk. Clause 4.4 para. 2 shall apply accordingly. In this case, notification of readiness for dispatch is equivalent to dispatch.
6.4 If the shipment is delayed because we exercise our right of retention as a result of the customer's default in payment in whole or in part, or for any other reason for which the customer is responsible, the risk shall pass to the customer at the latest from the date of receipt by the customer of the notification of readiness for shipment and/or performance.
7. Notice of Defects/Breach of Duty due to Material Defects/Warranty/Withdrawal/Claims for Damages by the Customer
7.1 The customer shall notify us of recognisable material defects immediately upon receipt, of hidden material defects immediately upon discovery, the latter at the latest within the warranty limitation period pursuant to clause 7.2. Failure to give notice of defects in due time shall exclude any claim of the customer for breach of duty due to material defects. This shall not apply in the case of intentional, grossly negligent or fraudulent action on our part, in the case of injury to life, limb or health or the assumption of a guarantee of freedom from defects, or a procurement risk in accordance with Section 276 BGB or other legally binding liability circumstances. The special statutory provisions in the case of final delivery of the goods to a consumer (supplier recourse, Sections 478, 479 BGB) shall remain unaffected.
7.2 Unless expressly agreed otherwise in writing or in text form, we shall provide a warranty for material defects for a period of 12 months, calculated from the date of transfer of risk (see clause 6.2), in the event of refusal to accept or take delivery on the part of the customer from the date of notification of readiness to take delivery of the goods. This shall not apply to claims for damages arising from a guarantee, the assumption of a procurement risk within the meaning of Section 276 BGB, claims due to injury to life, limb or health, fraudulent, intentional or grossly negligent action on our part, or if in the cases of Sections 478, 479 BGB (recourse in the supply chain) or insofar as a longer limitation period is otherwise stipulated by law. Section 305b BGB (the priority of the individual agreement in oral or textual or written form) remains unaffected. A reversal of the burden of proof is not associated with the above provision.
The processing of a notice of defect by the customer by us shall not be deemed to be an acknowledgement of the defect. The processing of a notice of defect shall only lead to the suspension of the limitation period insofar as the legal requirements for this are met. This does not result in a new start of the limitation period. This shall also apply if we carry out subsequent performance (rectification of defects or replacement delivery/reproduction) following notification of defects by the customer. A subsequent improvement can only have an influence on the limitation period of the defect triggering the subsequent improvement and any new defects arising in the course of the subsequent improvement. The rights of the customer according to Section 478 BGB remain unaffected.
7.3 Visible differences in quantity must be notified to us in writing immediately upon receipt of the goods, hidden differences in quantity immediately after discovery. If goods are damaged or destroyed in transit, the buyer must nevertheless pay the seller for them and address his claim for damages against them to the carrier, Section 421 para. 1 sentence 2 HGB. Open transport damage must be reported to the carrier in writing immediately upon receipt of the goods and concealed transport damage immediately upon discovery. In this case, direct evidence must also be provided that the damage did not occur after delivery. The customer is not entitled to a replacement delivery by the seller. Acceptance of the goods by the forwarder or carrier shall be deemed to be proof of correct quantity, flawless wrapping and loading.
Furthermore, in the case of goods accidentally delivered by Happyware without the customer's order, the customer undertakes to notify Happyware in writing of such a faulty delivery within 14 days at the latest and to keep the goods ready for collection by a forwarding agent or carrier to be commissioned by Happyware. If such a written notification of a faulty delivery is not made or not made in due time, it is deemed to have been approved, so that the customer is obliged to pay the usual and reasonable purchase price for the goods to Happyware.
7.4 The choice of the type of subsequent performance (rectification of defects or replacement delivery/new production) is incumbent on us. Replaced goods or parts thereof are our property and must be returned to us. In the context of restitution, the customer must also surrender or compensate for the use of the goods, which includes the benefits of use gained up to the time of withdrawal. The customer must allow these to be offset. The benefit of use for the time up to the withdrawal shall be calculated proportionately on the basis of the purchase price and the usual total period of use of the goods, unless the use was only possible to a limited extent or not at all due to the defect. Both parties are at liberty to prove a lower or higher benefit of use.
7.5 If we are not prepared or not in a position to provide supplementary performance, or if this is delayed beyond a reasonable period of grace for reasons for which we are responsible, or if the supplementary performance fails in any other way, or if this is unreasonable for the customer, the customer is entitled, at his discretion, to withdraw from the contract in full in the case of a completely failed performance/an overall non-functioning product/goods, in the event of a partially failed but otherwise properly performed service/an only partially functioning product/goods, to partially withdraw from the contract due to the part not yet fulfilled or, instead of withdrawal, to demand a corresponding reduction of the purchase price. Possible claims for damages are regulated in clause 8.
7.6 If the customer can withdraw from the contract due to our improper performance and/or claim damages instead of performance or claims such, the customer shall declare in writing at our request within a reasonably set period of time whether it asserts these rights or continues to wish the performance of the service. An insignificant defect does not entitle the customer to withdraw from the contract.
7.7 Our warranty (claims arising from breach of duty due to poor performance in the case of material defects) and the liability resulting therefrom shall be excluded insofar as defects and related damage are not demonstrably due to defective material, defective design, or defective workmanship, or defective manufacturing materials or, insofar as owed, defective instructions for use. In particular, the warranty and the resulting liability due to breach of duty due to poor performance are excluded for the consequences of incorrect use, unsuitable storage conditions, and for the consequences of chemical, electromagnetic, mechanical or electrolytic influences which do not correspond to the average standard influences provided for in our product description or a deviating agreed product specification or the respective product-specific data sheet on our part or on the part of the manufacturer. The foregoing shall not apply in the event of fraudulent, grossly negligent or intentional action on our part, or injury to life, limb or health, the assumption of a guarantee, a procurement risk in accordance with Section 276 BGB and liability in accordance with a statutory mandatory liability. In the case of goods individually adapted to the customer and manufactured according to the customer's wishes and ideas (piece purchase), the intention of the contracting parties at the time of the conclusion of the contract is to be taken into account in particular in the case of a warranty; if a rectification of defects is not suitable for the satisfaction of the customer's interest in performance, a replacement delivery in the case of a piece purchase shall be considered if, according to the idea of the parties, the goods, in the case of their defectiveness, can be replaced by a similar and equivalent one and can thus be satisfied in the customer's interest in performance.
7.8 We do not assume any warranty according to Sections 478, 479 BGB (recourse in the supply chain - supplier recourse) if the customer has processed or otherwise altered the products delivered by us under the contract, insofar as this does not correspond to the contractually agreed intended purpose of the products. In the event of an already defective delivery by the upstream supplier, we shall not be at fault and any warranty claims shall be excluded.
7.9 The acknowledgement of breaches of duty in the form of material defects must always be made in writing.
7.10 Second-hand goods shall be completely excluded from the above provisions, unless otherwise agreed and unless the damage results from injury to life, limb or health or the damage is due to an intentional or grossly negligent breach of duty.
7.11 If the parties have a production order and the customer withdraws from the contract prior to completion of the product, we shall be entitled to claim our services rendered to date and/or agreed remuneration, taking into account any expenses saved by us due to the premature termination of the contract.
8. Disclaimer/Limitation of Liability
8.1 Subject to the following exceptions, we shall not be liable, in particular not for claims of the customer for damages or reimbursement of expenses - irrespective of the legal grounds - in the event of a breach of duties arising from the contractual obligation. In particular, we shall not be liable for damage that has not occurred to the delivery item itself, for lost profit or other financial losses of the customer.
8.2 The above exclusion of liability pursuant to clause 8.1 shall not apply to the extent that liability is mandatory by law, as well as:
- for its own intentional or grossly negligent breach of duty and intentional or grossly negligent breach of duty by legal representatives or vicarious agents;
- for the breach of essential contractual obligations; "essential contractual obligations" are obligations that protect the legal positions of the customer which are essential to the contract and which the contract must grant to the customer according to its content and purpose; essential contractual obligations are also obligations the fulfilment of which makes the proper performance of the contract possible in the first place and on the fulfilment of which the customer has regularly relied and may rely;
- in the event of injury to life, limb and health, also by legal representatives or vicarious agents;
- in the event of default, insofar as a fixed delivery and/or fixed performance date was agreed;
- insofar as we have assumed a guarantee for the quality of our goods or the existence of a performance success, or a procurement risk within the meaning of Section 276 BGB;
- in the event of liability under the Product Liability Act or other legally binding liability circumstances.
8.3 In the event that we or our vicarious agents are only guilty of slight negligence and there is no case of the above clause 8.2, there 4, 5 and 6 indent, we shall only be liable for the contract-typical and foreseeable damage even in the event of a breach of essential contractual obligations.
8.4 The exclusions or limitations of liability pursuant to Clauses 8.1 to 8.4 and Clause 8.6 above shall apply to the same extent in favour of our executive bodies, our executive and non-executive employees and other vicarious agents as well as our subcontractors.
8.5 Claims by the customer for damages arising from this contractual relationship may only be asserted within a preclusion period of one year from the statutory commencement of the limitation period. This shall not apply if we are guilty of intent or gross negligence, for claims due to injury to life, limb or health, as well as in the case of a claim based on a tortious act or an expressly assumed guarantee or the assumption of a procurement risk in accordance with Section 276 BGB, or in the case that a longer limitation period is mandatorily applicable by law.
8.6 Any further liability for damages than provided for above is excluded - regardless of the legal nature of the asserted claim. This does not apply to claims for injury to life, limb or health, claims pursuant to Sections 1, 4 of the ProdHaftG (Product Liability Act) or to claims arising from tort or in the event of impossibility for which we are responsible.
9. Return/Subsequent Fulfilment Processing
9.1 Defective products are to be notified in advance stating the RMA number (sample specification: RMA# 123456789) as well as a copy of the delivery or invoice documents with a precise and professional description of the defect and sent or delivered to Happyware after release to the following address: Happyware Server Europe GmbH, Brauerstraße 44, 21244 Buchholz. The RMA number must be clearly marked on the outside of the packaging. The return form is enclosed with the delivery, but can also be requested subsequently (by telephone, fax or e-mail). Goods returned freight collect will not be accepted. The goods must be professionally packed and shipped. You will receive the type of packaging with our e-mail to you together with the RMA number. If the customer is entitled to return the goods due to a defect within the meaning of clause 7.1, we will reimburse the necessary costs of the return shipment after receiving proof of the amount of the expenses. In advance, the customer must offer us the opportunity to collect the goods in consultation. Increased costs, e.g. due to the goods not being transported to another location as intended or due to the choice of a special type of shipment (e.g. express shipment) shall be borne by the customer. In the event of an unjustified request for subsequent performance, we reserve the right to demand compensation for the costs we have incurred in vain to check the defectiveness of the goods.
9.2 The foregoing shall not apply in the event of fraudulent, grossly negligent or intentional action on our part, or injury to life, limb or health, the assumption of a guarantee, a procurement risk in accordance with Section 276 BGB and liability in accordance with a statutory mandatory liability.
9.3 The replacement of individual parts, assemblies or entire units shall not give rise to any new warranty periods with regard to claims and rights arising from defects. Excluded from this is limitation with regard to the parts affected by the rectification of defects.
9.4 The customer is obliged to a regular and proper data backup and has to take care that the data are backed up before sending the goods. Happyware does not assume any liability for lost data stocks and consequential damages resulting from this. Costs of data backup or reinstallation of software or of the devices themselves with regard to the devices to be repaired are not assumed by Happyware.
10. Prices/Terms of Payment/Defence of Uncertainty
10.1 All prices are ex works or ex warehouse and, in the absence of an agreement to the contrary, are quoted in EURO net excluding sea or air transport packaging, freight, postage and, if transport insurance has been agreed, insurance costs, plus value added tax to be borne by the customer (if legally applicable) at the legally prescribed rate, plus any country-specific charges for deliveries to countries other than the Federal Republic of Germany, e.g. bank charges, plus customs duties, costs for necessary documents and other fees and public charges for the delivery/service.
10.2 Payment methods other than cash, bank transfer or SEPA direct debit mandate require separate agreement between us and the customer. Even after conclusion of the contract, we reserve the right to make delivery only against advance payment or cash on delivery if it becomes apparent after conclusion of the contract that our claim is at risk due to the customer's lack of ability to pay. Such a reason exists in particular if the customer is in default with a claim of ours or if there are other justified doubts about the customer's creditworthiness.
10.3 The date of payment shall be the date on which the money is received by us or credited to our account or to the account of the paying agent specified by us.
10.4 Upon the occurrence of default, interest on arrears shall be charged at a rate of 9 percentage points above the base interest rate of the European Central Bank applicable at the time the payment claim falls due. We reserve the right to claim further damages. Costs incurred as a result of the default, e.g. reminders, forwarding to and processing by collection agencies, etc., shall be borne by the customer.
10.5 Incoming payments are first used to repay the costs, then the interest and finally the principal claims according to their age.
10.6 The customer shall only have a right of retention or right of set-off with regard to counterclaims that are not disputed by us, have been recognised by us or have been established by a court of law.
10.7 A right of retention may only be exercised by the customer insofar as his counterclaim is based on the same contractual relationship.
10.8 The costs to be expected for goods still to be manufactured for the customer are regularly estimated without obligation. We reserve the right to adjust prices.
10.9 If the new price is 15% or more above the original price due to our aforementioned right to adjust prices, the customer shall be entitled to withdraw from contracts that have not yet been fully performed or may terminate the contract. In the event of such a withdrawal, however, the customer must at least bear the costs that we have incurred for work performance and materials, less any expenses saved or otherwise acquired by the company. However, the customer may only assert the right of withdrawal immediately after notification of the increased price.
11. Retention of Title/Attachement
11.1 We retain title to all goods delivered by us (hereinafter collectively referred to as "goods subject to retention of title") until all our claims arising from the business relationship with the customer, including claims arising in the future from contracts concluded at a later date, have been settled. This shall also apply to a balance in our favour if individual or all claims are included by us in a current account and the balance has been struck. Separate agreements apply to rented goods.
11.2 The customer shall adequately insure the reserved goods, in particular against fire and theft. Claims against the insurance company arising from a case of damage affecting the goods subject to retention of title are hereby assigned to us in the amount of the value of the goods subject to retention of title. Separate agreements shall apply to rented goods.
11.3 The customer is entitled to resell the delivered products in the ordinary course of business. He shall not be permitted to make any other dispositions, in particular pledges or the granting of ownership by way of security. If the goods subject to retention of title are not paid for immediately by the third party purchaser in the event of resale, the customer shall be obliged to resell only subject to retention of title. The right to resell the goods subject to retention of title shall lapse without further ado if the customer suspends payment or defaults on payment to us.
11.4 Processing or transformation shall be carried out for us as manufacturer, but without any obligation for us. If the goods subject to retention of title are processed, combined or mixed with goods which are not our property, we shall acquire co-ownership of the new item in the ratio of the value of the goods delivered by us (invoice value, incl. VAT) to the other processed items at the time of processing. If the goods subject to retention of title are combined or mixed with a main item owned by the customer, it is hereby agreed that the customer's ownership of the uniform item shall pass to us in the ratio of the value of the goods delivered by us to the value of the main item at the time of the combination or mixing. The customer shall hold our co-ownership in safe custody for us free of charge.
11.5 The customer hereby assigns to us all claims accruing to him from or in connection with the resale of goods subject to retention of title against the end buyer or against third parties. Pledges or transfers by way of security are not permitted. If we are only entitled to a co-ownership share in the sold goods, the customer shall assign the claim to us in the amount of the invoice value of the delivered goods including value added tax. The customer may not make any agreement with his purchasers which excludes or impairs our rights in any way or nullifies the advance assignment of the claim. In the event of the sale of goods subject to retention of title with other items, the claim against the third party purchaser shall be deemed assigned in the amount of the delivery price agreed between us and the customer, unless the amounts attributable to the individual goods can be determined from the invoice.
The customer remains entitled to include the claim assigned to us until our revocation, which is permissible at any time. However, we undertake to revoke the direct debit authorisation only in the event of a justified interest. Such a justified interest exists, for example, if the customer does not properly fulfil his payment obligations or is in default of payment. At our request, the customer is obliged to provide us with all information and documents necessary for the collection of assigned claims and, if we do not do this ourselves, to inform his customers immediately of the assignment to us.
11.6 In the event of actions contrary to the contract for which the customer is responsible, in particular in the event of default in payment, we shall be entitled to take back all goods subject to retention of title after withdrawing from the contract. In this case, the customer shall be obliged to surrender the goods without further ado and shall bear the transport costs required for the repossession. Our taking back of the goods subject to retention of title shall constitute a withdrawal from the contract. In the event of withdrawal, we shall be entitled to realise the reserved goods. The proceeds of realisation, less reasonable costs of realisation, shall be set off against those claims which the customer owes us from the business relationship. We may enter the customer's business premises at any time during normal business hours in order to ascertain the stock of the goods delivered by us. The customer must inform us immediately in writing of any access by third parties to goods subject to retention of title or claims assigned to us.
11.7 In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can file a lawsuit in accordance with Section 771 ZPO (German Code of Civil Procedure). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to Section 771 ZPO, the customer shall be liable for the loss incurred by us.
12. Place of Performance/Jurisdiction/Applicable Law
12.1 The place of performance for all contractual obligations shall be the registered office of our company, with the exception of the case of the assumption of a debt to be discharged on delivery or otherwise agreed.
12.2 The exclusive place of jurisdiction for all disputes - insofar as the customer is a merchant within the meaning of the German Commercial Code (HGB) - is the registered office of our company. For the sake of clarity, this jurisdiction provision in sentences 1 and 2 shall also apply to such facts between us and the customer which may lead to non-contractual claims within the meaning of Regulation (EC) No. 864/2007. However, we are also entitled to sue the customer at his general place of jurisdiction.
12.3 The law of the Federal Republic of Germany shall apply exclusively to all legal relationships between the customer and us, in particular to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). It is expressly clarified that this choice of law is also to be understood as such in the sense of Art. 14 para. 1 b) Regulation (EC) No. 864/2007 and shall therefore also apply to non-contractual claims in the sense of this regulation. If foreign law is mandatory in an individual case, our GTC shall be interpreted in such a way that the economic purpose pursued with them is safeguarded as far as possible.
13. Withdrawal/Export Control/Product Approval/Import Regulations
13.1 In the absence of contractual agreements with the customer to the contrary, the delivered goods are intended to be placed on the market for the first time within the Federal Republic of Germany or, in the case of delivery outside the Federal Republic of Germany, to the agreed country of first delivery (first country of delivery).
13.2 The export of certain goods by the customer from there may - e.g. due to their nature or their intended use or final destination - be subject to authorisation. The customer himself is obliged to check this and to strictly observe the export regulations and embargos relevant for these goods, in particular those of the European Union (EU), Germany or other EU member states and, if applicable, the USA or Asian or Arab countries and all third countries concerned, insofar as he exports the products delivered by us or has them exported by third parties. In addition, the customer is obliged to ensure that the necessary national product approvals or product registrations are obtained prior to shipment to a country other than the first country of delivery agreed with us and that the requirements for the provision of user information in the national language and all import regulations laid down in the national law of the country concerned are fulfilled.
13.3 The customer shall in particular check and ensure, and prove to us upon request, that
- the products provided are not intended for use in armaments, nuclear technology or weapons technology;
- no companies and persons named on the US Denied Persons List (DPL) are supplied with US originating goods, US software and US technology;
- no companies and persons named on the US Warning List, US Entity List or US Specially Designated Nationals List are supplied with US originating products without the relevant authorisation;
- no companies and persons are supplied who are named in the list of Specially Designated Terrorists, Foreign Terrorist Organizations, Specially Designated Global Terrorists or the EU terrorist list or other relevant negative lists for export controls;
- no military recipients are supplied with the products we deliver;
- no recipients are supplied who are in breach of other export control regulations, in particular those of the EU or the ASEAN states;
- all early warning notices issued by the competent German or national authorities of the respective country of origin of the delivery are observed.
13.4 Access to and use of goods delivered by us may only take place if the above checks and safeguards have been carried out by the customer; otherwise the customer must refrain from the intended export and we are not obliged to perform.
13.5 In the event that the goods supplied by us are passed on to third parties, the customer undertakes to oblige these third parties in the same way as in Clauses 13.1-13.4 and to inform them of the need to comply with such legal provisions.
13.6 In the event of agreed delivery outside the Federal Republic of Germany, the customer shall ensure at its own expense that all national import regulations of the country of first delivery are fulfilled with regard to the goods to be delivered by us.
13.7 The customer shall indemnify us against all damages and expenses resulting from the culpable breach of the above obligations pursuant to Clauses 13.1-13.6.
14. Incoterms/Written Form/Salvatory Clause
14.1 Insofar as trade terms according to the International Commercial Terms (INCOTERMS) are agreed, INCOTERMS 2020 shall apply.
14.2 All agreements, ancillary agreements, assurances and amendments to the contract must be in writing. This also applies to the waiver of the written form agreement itself. The priority of the individual agreement in written, textual or oral form (Section 305b BGB) remains unaffected.
14.3 Should any provision of this contract be or become invalid/void or unenforceable in whole or in part for reasons relating to the law governing general terms and conditions of business pursuant to Sections 305 to 310 BGB, the statutory provisions shall apply. Should any present or future provision of the contract be or become invalid/void or unenforceable in whole or in part for reasons other than the provisions relating to the law governing general terms and conditions of business pursuant to Sections 305 to 310 BGB, this shall not affect the validity of the remaining provisions of this contract, unless the performance of the contract - also taking into account the following provisions - would constitute an unreasonable hardship for one of the parties. The same applies if a loophole arises after the conclusion of the contract that requires supplementation. Contrary to any principle according to which a severability preservation clause is in principle only intended to reverse the burden of proof, the validity of the remaining provisions of the contract shall be upheld under all circumstances and thus Section 139 BGB shall be waived in its entirety. The parties shall replace the invalid/void/unenforceable provision or gap requiring filling for reasons other than the provisions concerning the law of general terms and conditions pursuant to Sections 305 to 310 BGB by a valid provision which corresponds in its legal and economic content to the invalid/void/unenforceable provision and the overall purpose of the contract. Section 139 BGB (partial invalidity) is expressly excluded. If the invalidity of a provision is based on a measure of performance or time (period or date) specified therein, the provision shall be reconciled with a legally permissible measure that comes closest to the original measure.
Status: March 2023