General Terms and Conditions of Sale and Delivery
§ 1 Scope of application, form
(1) These General Terms and Conditions of Sale and Delivery (GTC) apply to all our business relationships with our customers ("Buyers"). The GTC shall only apply if the buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The GTC apply in particular to contracts for the sale and/or delivery of movable goods ("goods"), regardless of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GTC in the version valid at the time of the buyer's order or in any case in the version last communicated to him in text form shall also apply to similar future contracts, without us having to refer to them again in each individual case.
(3) Our GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This consent requirement applies in any case, for example even if we carry out the delivery to the buyer without reservation in knowledge of the buyer's terms and conditions.
(4) Individual agreements made with the buyer in individual cases (including ancillary agreements, additions and changes) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
(5) Legally relevant declarations and notifications of the buyer with regard to the contract (e.g. setting of a deadline, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail,fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declarant, remain unaffected.
(6) References to the validity of statutory provisions have only a clarifying meaning. Therefore, even without such clarification, the statutory provisions shall apply insofar as they are not directly amended or expressly excluded in these GTC.
§ 2 Conclusion of contract
(1) Our offers are subject to change and non-binding. This also applies if we have provided the buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve ownership rights and copyrights.
(2) Orders by the buyer shall be deemed to be a binding contract offer. Unless otherwise stated in the order, we are entitled to accept this contract offer within 21 days of its receipt by us.
(3) Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the buyer.
§ 3 Delivery period and delay in delivery
(1) The delivery period is agreed individually or specified by us upon acceptance of the order. If this is not the case, the delivery period for spare and wear parts is approx. 4 weeks, for machines approx. 3 months and for systems approx. 6 months from conclusion of the contract and receipt of the first down payment.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (unavailability of the service, cases of force majeure), we will inform the buyer immediately and at the same time inform the expected new delivery period. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already provided by the buyer. In particular, the non-availability of the service in this sense shall be deemed to be the non-timely self-supply by our supplier if we have concluded a congruent hedry transaction, neither we nor our supplier are at fault or if we are not obliged to procure in individual cases. A case of force majeure shall occur in the event of any unforeseeable, serious event, such as in particular war, terrorist conflict, epidemics or labour disputes, which is beyond the control of a Contracting Party and which prevents a Contracting Party from fulfilling its obligations in whole or in part, including fire damage, floods, strikes and operational disruptions or official orders for which they are not responsible, and lawful lockouts.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the buyer is required.
(4) The rights of the buyer according to § 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of the service and/or subsequent performance), remain unaffected.
§ 4 Delivery, transfer of risk, acceptance, default of acceptance
(1) Delivery takes place ex works (Villingen-Schwenningen) "EXW Incoterms 2010", where the place of performance for the delivery and any subsequent performance is also located. At the request and expense of the buyer, the goods will be shipped to another destination (sale by mail). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. In the case of a shipment purchase, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the forwarder, the carrier or the person or institution otherwise designated to carry out the shipment upon delivery of the goods. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, too, the statutory provisions of the law on contracts for work and services shall apply accordingly to an agreed acceptance. The handover or acceptance is the same if the buyer is in default of acceptance.
(3) If the buyer is in default of acceptance, if he fails to cooperate or if our delivery is delayed for other reasons for which the buyer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs). For this purpose, we charge a lump-sum compensation of EUR 500 per calendar day, starting with the delivery period or – in the absence of a delivery period – with the notification of the readiness for dispatch of the goods.
The proof of higher damages and our statutory claims (in particular compensation for additional expenses, appropriate compensation, termination) remain unaffected; however, the lump sum is to be offset against further monetary claims. The buyer is permitted to prove that we have incurred no damage at all or only a significantly lower damage than the above lump sum.
(4) The scope of delivery and services of the seller does not include:
the main supply line for the electrical switchgear; the complete professional fireplace system; the cost of pre-commissioning testing by a safety officer and acceptance by an expert, if necessary; Dismantling of existing plant components which, due to the new system, influence the installation or insertion of the machinecomponents; the first plant and construction cleaning at the end of assembly; Personnel for baking trials; the required heating and energy supply and a sufficient quantity of raw materials during the commissioning phase; Fire protection equipment, control and locking of any equipment on site; Operating platform, ladders, platforms, transitions via conveyor technology; All sanitary installations (water/steam) also on air conditioning systems; insulation of liquid pipes (e.B yeast, water, hot water, steam salt); the compressed air system, including the connecting cables to the defined pneumatic consumers; Registration of GBTstaff with local authorities (cooperation for obtaining permits); the preparation of the foundation, ifnecessary; the X-ray of the welds, if necessary; the required nh³ refill, if necessary; the commissioning of burners and annual maintenance by an authorisedprofessional; technical documentation in languages other than German andEnglish; Steel construction and masonry work ifnecessary; the cost of testing by a safety officer and acceptance by an expert, if necessary; Costs (daily rate etc.) for supervisors for unforeseen incidents and disabilities not caused by GBT, as wellas atotal cost for the helpers who support oursupervisor. The necessary equipment and services are to be provided by the buyer at his own expense.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value added tax.
(2) In the case of a shipment purchase (§ 4 para. 1), the buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the buyer. Unless we invoice the transport costs actually incurred in individual cases, a transport cost lump sum (excluding transport insurance) of EUR 1,000 shall be deemed to have been agreed. Any customs duties, fees, taxes and other public charges shall be borne by the buyer.
(3) The purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the goods. However, even within the framework of an ongoing business relationship, we are entitled at any time to carry out a delivery in whole or in part only against advance payment: 40% after receipt of the order confirmation, 50% after receipt of readiness for dispatch and 10% after commissioning of the system, but at the latest within 60 days after delivery. We declare a corresponding reservation at the latest with the order confirmation. At the request of the customer, the seller provides a bank guarantee (AVAL) for the 1st down payment limited to delivery. The costs (currently 2% of the deposit) will be charged to the buyer. The term ends with the delivery of the system.
(4) Upon expiry of the above payment period, the buyer shall be in default. The purchase price shall bear interest during the delay at the applicable statutory default interest rate. We reserve the right to assert further damage caused by default. With regard to merchants, our claim to the commercial maturity interest (§ 353 HGB) remains unaffected.
(5) The buyer is only entitled to set-off or retention rights to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, the buyer's counter-rights shall remain unaffected, in particular in accordance with § 7 (6) sentence 2 of these GTC.
(6) If, after conclusion of the contract, it becomes apparent (e.g. through an application for the opening of insolvency proceedings) that our claim to the purchase price is endangered by the buyer's inability to pay, we are entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we can declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.
(7) The Seller reserves the right, after timely notification of the Buyer and before execution of the delivery of the goods, to increase the price of the goods in such a way as is necessary due to the general external price increase beyond its control (such as exchange rate fluctuations, currency regulations, changes in customs duties, significant increase in material or production costs) or due to the change of suppliers, and it assures a price reduction if external costs (such as customs duties) are reduced or eliminated altogether.
§ 6 Retention of title
(1) Until full payment of all our current and future claims from the purchase contract and an ongoing business relationship (secured claims), we reserve title to the goods sold.
(2) The goods subject to retention of title may neither be pledged to third parties nor transferred as security before full payment of the secured claims. The buyer must notify us immediately in writing if an application for the opening of insolvency proceedings has been filed or if third parties (e.g. seizures) have access to the goods belonging to us.
(3) In the event of breach of contract by the buyer, in particular in the event of non-payment of the purchase price due, we are entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The request for surrender does not at the same time include the declaration of withdrawal; rather, we are entitled to demand only the return of the goods and to reserve the right to withdraw from the contract. If the buyer does not pay the purchase price due, we may only assert these rights if we have previously set the buyer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.
(4) Until revoked, the buyer is entitled in accordance withr (c) to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title extends to the products resulting from the processing, mixing or combination of our goods at their full value, whereby we are considered the manufacturer. If, in the event of processing, mixing or combination with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The claims against third parties arising from the resale of the goods or the product shall already be assigned to us by the buyer as security in total or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The obligations of the Buyer referred to in paragraph 2 shall also apply with regard to the assigned claims.
(c) In addition to us, the buyer remains authorized to collect the claim. We undertake not to collect the claim as long as the buyer fulfils his payment obligations to us, there is no defect in his ability to pay and we do not assert the retention of title by exercising a right pursuant to paragraph 3. However, if this is the case, we can demand that the buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the associated documents and noties the debtors (third parties) of the assignment. In addition, in this case we are entitled to revoke the buyer's authorization to further sell and process the goods subject to retention of title.
(d) If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the request of the buyer.
§ 7 Claims for defects of the buyer
(1) For the rights of the buyer in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), the statutory provisions, the general terms and conditions of the seller, apply, unless otherwise specified below. In all cases, the statutory special provisions remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if he has further processed them (supplier recourse according to §§ 478 BGB). Claims arising from supplier recourse are excluded if the defective goods have been further processed by the buyer or another entrepreneur, e.g. by installation in another product.
(2) The basis of our liability for defects is above all the agreement made on the quality of the goods. All product descriptions and manufacturer information that are the subject of the individual contract or were made public by us (in particular in catalogues or on our Internet homepage) at the time of conclusion of the contract shall be deemed to be an agreement on the quality of the goods.
The basis of our liability for defects is also a professional assembly and commissioning by our specialist personnel, as well as proper maintenance, in accordance with our operating and maintenance instructions. Wear parts (e.g. belts, scrapers, lighting, etc.) are excluded from the warranty.
The seller is entitled to change and improve the goods without having to inform the buyer in advance, provided that change or improvement does not permanently burden or deteriorate the form or function of the goods.
(3) If the quality has not been agreed, the statutory regulation must be used to assess whether a defect exists or not (§ 434 para. 1 sentences 2 and 3 BGB). However, we assume no liability for public statements by the manufacturer or other third parties (e.g. advertising statements) to which the buyer has not pointed out to us as decisive for his purchase.
(4) In principle, we are not liable for defects that the buyer knows at the time of conclusion of the contract or is grossly negligent (§ 442 BGB). Furthermore, the buyer's claims for defects presuppose that he has fulfilled his statutory inspection and notification obligations (§§ 377, 381 HGB). In the case of goods intended for incorporation or other further processing, an examination must in any case be carried out immediately before processing. If a defect becomes apparent during delivery, inspection or at any later date, we must be notified of this immediately in writing. In any case, obvious defects must be reported in writing within 5 working days of delivery and defects not recognizable during the examination within the same period of time from discovery. If the buyer fails to properly inspect and/or report defects, our liability for the defect not or not reported in time or not properly reported is excluded in accordance with the statutory provisions.
(5) If the delivered item is defective, we can initially choose whether we provide supplementary performance by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). Our right to refuse supplementary performance under the statutory conditions remains unaffected.
(6) We are entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to retain a reasonable part of the purchase price in relation to the defect.
(7) The buyer must give us the time and opportunity necessary for the subsequent performance owed, in particular to provide us with access to the goods/system complained of for inspection purposes. In the event of a replacement delivery, the buyer must return the defective item to us in accordance with the statutory provisions. Subsequent performance does not include the removal of the defective item or the re-installation if we were not originally obliged to install it.
(8) We shall bear or reimburse the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs as well as any dismantling and installation costs, in accordance with the statutory provisions, if a defect actually exists. Otherwise, we may demand reimbursement from the buyer for the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognizable to the buyer.
(9) In urgent cases, e.g. in the event of a threat to operational safety or to avert disproportionate damage, the buyer has the right to remedy the defect himself and to demand compensation from us for the objectively necessary expenses. We must be notified of such self-action immediately, if possible in advance. The right of self-performance does not exist if we would be entitled to refuse a corresponding supplementary performance in accordance with the statutory provisions.
(10) If the subsequent performance has failed or a reasonable deadline to be set by the buyer for the subsequent performance has expired unsuccessfully or is dispensable according to the statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
(11) Claims of the buyer for damages or reimbursement of futile expenses exist even in the case of defects only in accordance with § 8 and are otherwise excluded.
§ 8 Other liability
(1) Unless otherwise stated in these GTC, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) We shall be liable for damages – regardless of the legal grounds – within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in our own affairs; insignificant breach of duty).
a) for damages alike due to injury to life, limb or health,
b) for damages resulting from the breach of an essential contractual obligation (obligation the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 shall also apply to third parties and to breaches of duty by persons (also in their favour) whose fault we are responsible for in accordance with statutory provisions. They do not apply if a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the buyer under the Product Liability Act.
(4) Due to a breach of duty that does not consist of a defect, the buyer can only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 9 Statute of limitations
(1) Notwithstanding § 438 (1) No. 3 BGB (German Civil Code), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period begins with acceptance.
(2) If the goods are a building or an item that has been used for a building in accordance with its usual use and has caused its defectiveness (building material), the limitation period in accordance with the statutory regulation is 5 years from delivery (§ 438 para. 1 no. 2 BGB). Other statutory special provisions on the statute of limitations (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) also remain unaffected.
(3) The above limitation periods of the sales law also apply to contractual and non-contractual claims for damages of the buyer based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages of the buyer according to § 8 para. 2 sentence 1 and sentence 2 (a) as well as according to the Product Liability Act become statute-barred exclusively according to the statutory limitation periods.
§ 10 Choice of law and place of jurisdiction
(1) These GTC and the contractual relationship between us and the buyer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Sales Law.
(2) If the buyer is a merchant within the german commercial code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered office in Villingen-Schwenningen. The same applies if the buyer is an entrepreneur within the sense of § 14 BGB (German Civil Code). However, in all cases we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTC or a priority individual agreement or at the general place of jurisdiction of the buyer. Priority statutory provisions, in particular on exclusive competences, remain unaffected.