English
1.1 All deliveries, services and offers of Mey Maschinenbau Prien GmbH & Co. KG (hereinafter referred to as "Supplier") shall be made exclusively on the basis of these General Terms and Conditions of Delivery. These shall form an integral part of all contracts concluded by the Seller with its contractual partners (hereinafter also referred to as "Client") for the deliveries or services offered by it. They shall also apply to all future deliveries, services or offers to the Customer, even if they are not separately agreed again.
1.2 Terms and conditions of the Customer or third parties shall not apply, even if the Supplier does not separately object to their application in individual cases. Even if the Supplier refers to a letter which contains or refers to the terms and conditions of the Customer or a third party, this shall not constitute an agreement to the validity of those terms and conditions.
2.1 The Supplier shall be bound by offers and cost estimates for 21 days.
2.2 The legal relationship between Supplier and Customer shall be governed solely by the written purchase contract, including these General Terms and Conditions of Delivery. The respective purchase order and subsequent order confirmation as well as - if applicable - superordinate framework supply agreements shall also be understood as a purchase agreement concluded in writing in this sense. The latter shall fully reflect all agreements between the contracting parties regarding the subject matter of the contract. Oral promises made by the supplier prior to the conclusion of this contract are not legally binding and oral agreements between the contracting parties shall be replaced by the written contract, unless expressly agreed otherwise between the contracting parties in each case.
2.3 Supplements and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be in writing in order to be effective. Transmission by telecommunication, in particular by e-mail or fax, shall be sufficient to comply with the written form requirement in this context.
2.4 Information provided by the supplier on the object of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components by equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.
2.5 The Supplier retains ownership or copyright of all offers and cost estimates submitted by it as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the Customer. The Customer may not make these items available to third parties, either as such or in terms of content, disclose them, use them himself or through third parties, or reproduce them without the express consent of the Supplier. At the Supplier's request, the Customer shall return these items to the Supplier in full and destroy any copies made if they are no longer required by the Supplier in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. The storage of electronically provided data for the purpose of usual data backup is excluded from this.
3.1 The prices shall apply ex works, excluding freight and shipping costs and packaging. Value added tax at the statutory rate shall be added to the prices. In the event of any increases in material or labor costs occurring between the conclusion of the contract and the fulfillment of the order, the contracting parties shall have the right to demand negotiations on the adjustment of the price, unless a more specific contractual provision has already been made below. The Supplier shall inform the Customer of any services not expressly estimated in the offer which, in the Supplier's opinion, are necessary for the execution of the order. These services, as well as services performed at the request of the Customer, shall be additionally remunerated. This applies in particular to all work arising in connection with assembly. The prices shall be understood to be for normal working hours (Monday to Friday from 7 a.m. to 5 p.m.) and work performance. For overtime, night, Sunday and holiday hours as well as for work under difficult conditions, the corresponding surcharges shall be added to the effective wage.
3.2 If the parties expressly agree on delivery free domicile in deviation from clause 3.1, the then agreed price shall include freight or shipping costs and packaging and shall be made to the premises of the respective address stated in the order. An assumption of the transport risk is just not connected with this. The risk of damage or accidental loss shall pass to the Buyer upon handover to the transport person. In all other respects the regulations of number 3.1 remain unaffected.
3.3 Invoice amounts shall be paid within ten calendar days without any deduction, unless otherwise agreed in writing. The date of receipt by the Supplier shall be decisive for the date of payment. If the Customer fails to make payment when due, the outstanding amounts shall bear interest at 9% p.a. from the due date; the right to claim higher interest and further damages in the event of default shall remain unaffected. Acceptances or customer bills of exchange shall not be deemed to be fulfilled until they have been honored; any costs and expenses incurred in this connection shall be borne by the party liable to pay.
3.4 Offsetting against counterclaims of the Customer or the retention of payments due to such claims shall only be permissible to the extent that the counterclaims are undisputed or have become res judicata or arise from the same order under which the relevant delivery was made.
3.5 The Supplier shall be entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if, after the conclusion of the contract, it becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the Customer and which jeopardize the payment of the Supplier's outstanding claims by the Customer arising from the respective contractual relationship (including from other individual orders to which the same framework agreement applies). In case of non-compliance with the terms of payment by the Customer, all outstanding claims from this order shall become due immediately. After fruitless expiry of a reasonable grace period set by the Supplier, the Supplier shall be entitled to terminate the contract, to cease work, to settle all services rendered to date and to claim damages.
4.1 General - If, in the period between conclusion of the contract and invoicing ("Adjustment Period"), one or more of the price-forming components ("Price Components") listed in the following Sections (4.2 and 4.3) or the inflation level as a whole change, a price adjustment of the price originally formed in accordance with Section 3 shall be made on the basis of this Section 4 for the final invoice as follows:
4.1.1 If one or more of the price components (e.g. costs of supplied production parts) change, a component adjustment ("Price Component Adjustment") shall be made based on this change and shall be disclosed in the final invoice, which shall then be included in the total price ("Total Price") as the respective changed price component;
4.1.2 If the inflation level listed in this Section 4 changes, a corresponding total adjustment of the total price ("Price Adjustment") shall be made on the basis of this Section 4;
4.1.3 In the event of a price adjustment of the total price pursuant to this clause 4.1.2, any individual price component adjustments required pursuant to clause 4.1.1 shall not be taken into account.
4.2 Inflation level
If the consumer price index for Germany officially determined by the Federal Statistical Office has changed by more than 3% upwards or downwards in the adjustment period, the total price shall change proportionately accordingly.
4.3 Price components
4.3.1 If the price of ready-to-install purchased parts ("Finished Parts") or the price of the raw materials required for the production of purchased parts to be manufactured ("Finished Parts"), such as in particular, but not limited to, plate, sheet, bars, tubes, angle steels and flat steels ("Raw Materials") (Finished Parts, If the price of the raw materials required, such as in particular but not exclusively plate, sheet, bar, tube, angle steel and flat steel ("raw materials") (finished parts, manufactured parts and raw materials together also "vendor parts"), changes by more than 5% upwards or downwards due to fluctuations in the reference rate for the US dollar published by the European Central Bank in the adjustment period ("dollar purchase"), a corresponding pro rata price share adjustment shall be made.
4.3.2 In the event that the price for supplier parts (pursuant to Section 4.3.1.), which are not payable in US dollars and with regard to which no framework agreements with price fixing are possible, changes by more than 5% upwards or downwards in the adjustment period, a proportionally corresponding price component adjustment shall be made.
4.3.3 If the price for external surfaces, such as in particular, but not limited to, galvanizing, anodizing, powder coating or wet painting, or drawing parts or the price for finished parts and production parts, for which a so-called alloy surcharge per kilogram is levied in accordance with the contract, changes by more than 5 % upwards or downwards during the acquisition period, a corresponding pro rata adjustment shall be made, unless such adjustment has already been made in accordance with Clause 4.3.1. or 4.3.2.
4.3.4 If the German Raw Materials Agency (DERA) of the Federal Institute for Geosciences and Natural Resources officially determines that the price of the raw materials required for the production of the manufactured parts (Clause 4.3.1.) has changed by more than 5 % upwards or downwards during the adjustment period, a corresponding price component adjustment shall be made, unless such an adjustment has already been made in accordance with Clause 4.3.1. or 4.3.2.
4.3.5 If the costs for the shipment from the supplier to the end customer ("end customer shipment") or for the shipment of finished parts (subclause 4.3.1.), externally procured parts (subclause 4.3.3.) or raw materials (subclause 4.3.1.) from the respective supplier to the supplier or the shipment and return shipment of production parts (subclause 4.3.1.), which are sent in for surface treatment or finishing or parts which are shipped between Germany and Hungary within the framework of plant transport ("intermediate shipping"), by more than 5 % upwards or downwards in the adjustment period, the price component shall change proportionately accordingly.
The same shall apply if costs for logistics services of a carrier of the Supplier, which concern the shipment of goods of any kind from a picking warehouse to the Hungarian location of the Supplier, change by more than 5% upwards or downwards in the adjustment period.
5.1 Deadlines and dates for deliveries and services promised by the supplier are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarder, carrier or other third party entrusted with the transport, unless expressly stated otherwise by us. Unless otherwise agreed, the time of delivery shall be deemed to be the day on which the delivery is handed over to the Customer or the day on which the delivery is parked on the Customer's premises.
5.2 The Supplier may - without prejudice to its rights arising from default of the Customer - demand from the Customer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period of time during which the Customer does not meet its contractual obligations towards the Supplier. If the Customer fails to remedy the situation without delay at the Supplier's request, the Supplier may claim damages or set the Customer a reasonable deadline for performance of the contract and declare that it will withdraw from the contract if the deadline expires without results.
5.3 The Supplier shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, pandemics or epidemics, war and extensive mobilizations in the country of the Supplier's registered office or that of its suppliers, official measures or the failure of suppliers to deliver, to deliver correctly or to deliver on time despite a congruent hedging transaction concluded by the Supplier) for which the Supplier is not responsible. Insofar as such events make it significantly more difficult or impossible for the Supplier to deliver or perform and the hindrance is not only of temporary duration, the Supplier shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service periods shall be extended or the delivery or service dates shall be postponed by the period of the hindrance plus a reasonable start-up period. In any case - whether an impediment is of a temporary or permanent nature - the Supplier shall immediately inform the Customer of the occurrence of the event concerned. Insofar as the Customer cannot reasonably be expected to accept the delivery or service as a result of the delay, it may withdraw from the contract by means of an immediate written declaration to the Supplier. In this case, the Supplier shall be entitled to claim compensation for all expenses incurred to date.
5.4 The Supplier shall only be entitled to make partial deliveries if
- the partial delivery is usable for the Customer within the scope of the contractual intended purpose,
- the delivery of the remaining ordered goods is ensured and
- the Customer does not incur any significant additional expenses or costs as a result (unless the Seller agrees to bear such costs).
5.5 If the Supplier is in default with a delivery or service or if a delivery or service becomes impossible for the Supplier, for whatever reason, the Supplier's liability for damages shall be limited in accordance with § 9 of these General Terms and Conditions of Delivery.
6.1 The place of performance for all obligations arising from the contractual relationship shall be one of the Supplier's production sites in Nyúl, Hungary and Győr, Hungary, in accordance with the respective order site or, unless otherwise specified, the Supplier's registered office in Prien am Chiemsee. If the Supplier is also responsible for the installation, the place of performance shall be the place where the installation is to take place.
6.2 The method of shipment and the packaging are subject to the dutiful discretion of the supplier.
6.3 If shipment of the goods has been agreed, the risk shall pass to Customer at the latest upon handover of the delivery item (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. If the shipment or the handover is delayed due to a circumstance the cause of which lies with the Customer, the risk shall pass to the Customer from the day on which the delivery item is ready for shipment and the Supplier has notified the Customer thereof.
6.4 Storage costs after transfer of risk shall be borne by the Customer. In case of storage by the Supplier, the storage costs shall amount to (0.25) % of the invoice amount (net) of the delivery items to be stored per expired week. We reserve the right to claim and prove further or lower storage costs.
6.5 The shipment shall be insured by the Supplier against theft, breakage, transport, fire and water damage or other insurable risks only at the express request of the Customer and at the Customer's expense.
6.6 Insofar as acceptance has to take place, the object of sale shall be deemed to have been accepted if
- the delivery and, if the supplier also owes the installation, the installation has been completed,
- the Supplier has notified the Customer thereof with reference to the deemed acceptance pursuant to this § 6 (6) and has requested the Customer to accept the goods,
- 14 working days have elapsed since delivery or installation or the customer has started using the purchased item (e.g. has put the delivered equipment into operation) and in this case 7 working days have elapsed since delivery or installation and
- the Customer has failed to take delivery within this period for a reason other than a defect notified to the Supplier which makes the use of the purchased item impossible or significantly impairs it.
7.1 The following limitations of the warranty shall not apply to claims for damages of the Customer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by the Supplier or its vicarious agents. The warranty period shall be one year from the date of delivery pursuant to Section 5.1 or, if acceptance is required, from the date of acceptance.
7.2 The delivered items shall be inspected carefully immediately after delivery to the Customer or to the third party designated by the Customer. With regard to obvious defects or other defects which would have been recognizable in the course of an immediate, careful inspection, they shall be deemed to have been approved by Customer if Supplier does not receive a written notice of defect within 14 working days after delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the Customer if the Supplier does not receive the notice of defect within 7 working days after the point in time at which the defect became apparent; however, if the defect was already apparent at an earlier point in time during normal use, this earlier point in time shall be decisive for the start of the notice period. In the event of a justified notice of defect, the Supplier shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use. If the delivery item is located at an end customer's or other third party's premises, the Supplier shall only bear the costs of the most favorable shipping route from the Customer's registered office to the Supplier's registered office. Any additional costs shall be borne by the Customer.
7.3 In the event of material defects of the delivered items, the Supplier shall first be obligated and entitled to rectify the defect or to make a replacement delivery at its discretion to be made within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, Customer may withdraw from the contract or reduce the purchase price appropriately.
7.4 If a defect is due to the fault of the Supplier, the Customer may claim damages under the conditions set out in Clause 9.
7.5 In the event of defects in components of other manufacturers which the Supplier cannot remedy for licensing or factual reasons, the Supplier shall, at its option, assert its warranty claims against the manufacturers and suppliers for the account of the Customer or assign them to the Customer. In the event of such defects, warranty claims against the Supplier shall only exist under the other conditions and in accordance with these General Terms and Conditions of Delivery if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, e.g. due to insolvency. For the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the Customer against the Supplier shall be suspended.
7.6 The warranty shall not apply if the Customer modifies the delivery item or has it modified by a third party without the consent of the Seller and the elimination of the defect becomes impossible or unreasonably difficult as a result. In any case, the Customer shall bear the additional costs of remedying the defect resulting from the modification.
7.7 Any delivery of used items agreed with the Customer in individual cases shall be made to the exclusion of any warranty for material defects.
7.8 Welding work of the Supplier shall be performed exclusively in accordance with the respectively valid DIN EN ISO 5817 evaluation group C. If the welding work has to be performed according to DIN EN ISO 5817 evaluation group B or execution classes whose standard does not comply with DIN EN ISO 5817 evaluation group C, the Customer shall be obliged to explicitly and separately inform the Supplier of this fact (in text form) before or when placing the order. If the Customer does not comply with its obligation to inform the Supplier about a higher evaluation group and if the requirement of a higher evaluation group than DIN EN ISO 5817 evaluation group C is therefore not taken into account by the Supplier, the execution of the welding work in accordance with DIN EN ISO 5817 evaluation group C shall not constitute a material defect entitling the Customer to assert warranty rights.
8.1 The Supplier's liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with this Clause 9, insofar as fault is relevant in each case.
8.2 The Supplier shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, unless a breach of material contractual obligations is involved. Material contractual obligations are the obligation to deliver and install the delivery item in due time, its freedom from defects of title as well as such material defects which impair its functionality or usability more than insignificantly, as well as consulting, protection and care obligations which are intended to enable the Customer to use the delivery item in accordance with the contract or which are intended to protect the life and limb of the Customer's personnel or to protect the Customer's property from significant damage.
8.3 Insofar as the Supplier is liable on the merits for damages pursuant to Section 9.2, this liability shall be limited to damages which the Supplier foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which it should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the delivery item shall also only be compensable insofar as such damage is typically to be expected when the delivery item is used for its intended purpose. The above provisions of this Paragraph 3 shall not apply in the event of intentional or grossly negligent conduct on the part of members of the Supplier's corporate bodies or executive employees.
8.4 The above exclusions and limitations of liability shall apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of the Supplier.
8.5 Insofar as the Supplier provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by it, this shall be done free of charge and to the exclusion of any liability.
8.6 The limitations of this Clause 9 shall not apply to the Supplier's liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
9.1 The following agreed retention of title shall serve as security for all current and future claims of the Supplier against the Customer arising from the supply relationship existing between the contracting parties (including balance claims from a current account relationship limited to this supply relationship).
9.2 The goods delivered by the Supplier to the Customer shall remain the property of the Supplier until full payment of all secured claims. The goods as well as the goods covered by the retention of title taking their place in accordance with the following provisions shall hereinafter be referred to as "Retained Goods".
9.3 The Supplier shall store the reserved goods for the Customer free of charge.
9.4 The Customer shall be entitled to process and sell the reserved goods in the ordinary course of business until the case of realization (para. 9) occurs. Pledges and transfers by way of security are not permitted.
9.5 If the reserved goods are inseparably mixed with other items not belonging to the Supplier, the Supplier shall acquire co-ownership of the new item in proportion to the value of the reserved goods to the other mixed items. In deviation from § 947 BGB, the Supplier shall also acquire pro rata co-ownership if the Customer's item is to be regarded as the main item.
9.6 In the event of resale of the reserved goods, the Customer hereby assigns to the Supplier by way of security the claims against a third party arising therefrom, including all ancillary rights. The same shall apply to other claims which take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. The Supplier revocably authorizes the Customer to collect the claims assigned to the Supplier in its own name. The supplier may only revoke this collection authorization in the event of realization.
9.7 If third parties seize the reserved goods, in particular by way of attachment, Customer shall immediately notify them of Supplier's ownership and inform Supplier thereof in order to enable Supplier to enforce its ownership rights. If the third party is not in a position to reimburse the Supplier for the court or out-of-court costs incurred in this connection, the Customer shall be liable for these to the Supplier.
9.8 The supplier shall partially release the goods subject to retention of title as well as the items or claims replacing them insofar as their value exceeds the amount of the secured claims by more than 50%. The selection of the items to be released thereafter shall be at the Supplier's discretion.
9.9 If the Supplier withdraws from the contract in whole or in part in the event of a breach of contract by the Purchaser - in particular default of payment - the Supplier shall be entitled to demand the return of the Retained Goods on the basis of the retention of title.
10.1 If the Customer is a merchant, a legal entity under public law or a special fund under public law or if it has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the Seller and the Customer shall be Rosenheim or the registered office of the Customer, at the Supplier's option. In such cases, however, Rosenheim shall be the exclusive place of jurisdiction for actions against the Supplier. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
10.2 Contracts between the Supplier and the Customer shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods. The statutory provisions on the limitation of the choice of law and on the applicability of mandatory provisions shall remain unaffected.
10.3 Should any provision of this contract be or become invalid, or should the contract contain a loophole, this shall not affect the validity of the remainder of the contract. In place of the invalid provision, the valid provision shall be deemed agreed which comes closest to the meaning and purpose of the invalid provision. In order to fill a loophole, the provisions shall be deemed agreed which the parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole.
1.1 These General Terms and Conditions of Purchase (GTCP) shall apply to all business relations with our business partners and suppliers ("Seller") concerning the sale and/or delivery of movable goods ("Goods"), irrespective of whether Seller manufactures the Goods itself or purchases them from suppliers (§§ 433, 650 BGB). The GPC shall only apply if the Supplier is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
1.2 Unless otherwise agreed, the GPC in the version valid at the time of the Buyer's order or in any case in the version last notified to the Seller in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
1.3 These GTCP shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Seller shall only become part of the contract if and to the extent that we have expressly consented to their application in writing. This consent requirement shall apply in any case, for example even if the Seller refers to its GTC in the context of the order confirmation and we do not expressly object to this.
1.4 Legally relevant declarations and notifications of the Seller with regard to the contract (e.g. setting of deadlines, reminders, withdrawal) shall be made in writing. Written form within the meaning of these GPC includes written and text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in the case of doubts about the legitimacy of the declarant, shall remain unaffected.
1.5 In correspondence of any kind, the order number, Com. no. and customer number must be stated. If delivery on call is agreed in other agreements, e.g. framework agreements, the delivery must be made immediately on call.
1.6 References to the applicability of statutory provisions shall only have a clarifying meaning. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GPC.
Individual agreements (e.g. framework supply agreements, quality assurance agreements) and specifications in our purchase order shall take precedence over the GPC. In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms® published by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.
Therefore, in case of doubt, the following order of priority results for the type and scope of the mutual services:
3.1 Our order shall be deemed binding at the earliest upon written submission or confirmation. Verbal ancillary agreements to the order shall only be binding if the Buyer confirms them in writing. This shall also apply to subsequent amendments or supplements.
3.2 In the offer, the Seller shall adhere precisely to the specifications and the wording of the inquiry. The Seller shall notify us of any deviations from the inquiry, obvious errors (e.g. spelling and calculation errors) and incompleteness of the order including the order documents for the purpose of correction or completion prior to acceptance; otherwise the contract shall be deemed not to have been concluded. The offer shall be made free of charge.
3.3 The Seller shall confirm our order in writing within a period of 5 days.
3.4 A delayed acceptance shall be deemed a new offer and shall require acceptance by us.
4.1 The delivery time specified by us in the order shall be binding. The Seller shall be obliged to notify us in writing without undue delay if circumstances occur or become apparent which indicate that the agreed delivery time cannot be met.
4.2 If the Seller fails to perform or fails to perform within the agreed delivery period or is in default, our rights - in particular to rescission and damages - shall be determined in accordance with the statutory provisions. The provisions in para. 3 shall remain unaffected.
4.3 If the Seller is in default, we may - in addition to further statutory claims - demand lump-sum compensation for our damage caused by default in the amount of 1% of the net price per completed calendar week, but in total not more than 10% of the net price of the goods delivered late. We reserve the right to prove that higher damages have been incurred. The seller reserves the right to prove that no damage at all or only a significantly lower damage has been incurred.
5.1 Without our prior written consent, the Seller shall not be entitled to have the performance owed by it rendered by third parties (e.g. subcontractors). In the event of our written consent, the Seller shall impose on the third parties with regard to the tasks assumed by it and ensure compliance therewith all obligations which it has assumed vis-à-vis us. The Seller shall bear the procurement risk for its services unless otherwise agreed in individual cases (e.g. limitation to stock).
5.2 Delivery shall be made "free domicile" within Germany to the place specified in the order. If the place of destination is not specified and nothing else has been agreed, the delivery shall be made to our place of business in Prien am Chiemsee. The respective place of destination shall also be the place of performance for the delivery and any subsequent performance (obligation to deliver).
5.3 The delivery shall be accompanied by a delivery bill stating the date (issue and dispatch), the content of the delivery (article number and quantity) and our order identification (date and number). If the delivery bill is missing or incomplete, we shall not be responsible for any delays in processing and payment resulting therefrom. A corresponding dispatch bill with the same content must be sent to us separately from the delivery bill. The costs arising from misrouting of deliveries shall be borne by the seller if he is responsible for the misrouting of the transport.
5.4 The risk of accidental loss and accidental deterioration of the item shall pass to us upon handover at the place of performance. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis in the event of acceptance. The handover or acceptance shall be deemed equivalent if we are in default of acceptance.
6.1 Unless otherwise agreed, the delivery items must comply with the current state of the art, in particular the EC directives applicable in Europe, European standards and supplementary applicable national standards and technical specifications (EN, VDE, VDI, etc.). The Seller shall take into account the recognized rules of technology and the respectively applicable statutory and official regulations and our the operational rules and regulations.
6.2 Machines and technical work equipment shall be supplied with operating instructions and an EC declaration of conformity in accordance with the Machinery Ordinance.
6.3 In case of delivery of hazardous substances, product information, in particular safety data sheets, shall be provided to us in due time prior to delivery. The use of carcinogenic substances is prohibited for the Seller. As far as applicable, the Seller shall maintain a quality assurance system, e.g. in accordance with DIN EN ISO 9001:2015. We shall be entitled to review the system after consultation.
7.1 The price stated in the order shall be binding. All prices, including all discounts and surcharges, are fixed prices plus statutory value added tax.
7.2 Unless otherwise agreed in the individual case, the price shall include all services and ancillary services of the Seller (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).
7.3 Invoices can only be processed by us if they comply with the specifications in clause 1.6. If one or more of these specifications are missing and processing by us is delayed as a result within the scope of our normal business transactions, the payment periods specified in para. 4 shall be extended by the period of the delay. Invoices shall be issued in duplicate and sent separately after the order to the respective invoice address.
7.4 The agreed price shall be due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If we make payment within 14 calendar days, the Seller shall grant us a 3% discount on the net amount of the invoice. In the case of bank transfer, payment shall be deemed to have been made in due time if our transfer order is received by our bank before the expiry of the payment deadline; we shall not be responsible for any delays caused by the banks involved in the payment process. Payments made are not to be understood as unconditional acceptance of the goods and are made subject to invoice verification.
7.5 We shall not owe any interest on arrears. The statutory provisions shall apply to default in payment.
7.6 We shall be entitled to rights of set-off and retention as well as the defense of non-performance of the contract to the extent provided by law. In particular, we shall be entitled to withhold payments due as long as we are still entitled to claims against the Seller arising from incomplete or defective performance.
7.7 The Seller shall have a right of set-off or retention only on the basis of counterclaims that have been legally established or are undisputed.
8.1 We reserve the property rights and copyrights to illustrations, plans, drawings, calculations, implementation instructions, product descriptions and other documents. Such documents shall be used exclusively for the contractual performance and shall be returned to us after completion of the contract. The documents must be kept secret from third parties, even after termination of the contract. The obligation to maintain secrecy shall only expire if and to the extent that the knowledge contained in the documents provided has become generally known. Special confidentiality agreements and statutory regulations on the protection of secrets shall remain unaffected.
8.2 The foregoing provision shall apply mutatis mutandis to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items which we provide to Seller for production. Such provided items shall - as long as they are not processed - be stored separately at the Seller's expense and insured to a reasonable extent against destruction and loss. The Seller shall be liable for the loss of or damage to items provided.
8.3 Any processing, mixing or combination (further processing) of provided items by the Seller shall be carried out for us. The same shall apply in the event of further processing of the goods supplied by us, so that we shall be deemed to be the manufacturer and shall acquire ownership of the product at the latest upon further processing in accordance with the statutory provisions. If the goods are mixed in such a way that the Seller's item is to be regarded as the main item, it shall be deemed agreed that the Seller transfers co-ownership to us on a pro rata basis.
8.4 The transfer of ownership of the goods to us shall be unconditional and without regard to the payment of the price. However, if in individual cases we accept an offer of the Seller to transfer title conditional on payment of the purchase price, the Seller's retention of title shall expire at the latest upon payment of the purchase price for the goods delivered. We shall remain authorized to resell the goods in the ordinary course of business even prior to payment of the purchase price with advance assignment of the claim arising therefrom (alternatively, the simple reservation of title extended to the resale shall apply). This excludes all other forms of retention of title, in particular the extended retention of title, the passed-on retention of title and the retention of title extended to further processing.
9.1 The statutory provisions and, exclusively in our favor, the following supplements and clarifications shall apply to our rights in the event of material defects and defects of title of the goods (including wrong and short delivery as well as improper assembly/installation or defective instructions) and in the event of other breaches of duty by the Seller.
9.2 In accordance with the statutory provisions, the Seller shall be liable in particular for ensuring that the goods have the agreed quality at the time of transfer of risk to us. In any case, those product descriptions which - in particular by designation or reference in our order - are the subject matter of the respective contract or were included in the contract in the same way as these GPC shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from us, from the seller or from the manufacturer.
9.3 In the case of goods with digital elements or other digital content, the Seller shall owe the provision and updating of the digital content in any case to the extent that this results from a quality agreement pursuant to para. 2 or other product descriptions of the manufacturer or on its behalf, in particular on the Internet, in advertising or on the goods label.
9.4 We shall not be obliged to inspect the goods or to make special inquiries about any defects upon conclusion of the contract. In partial deviation from Section 442 (1) sentence 2 of the German Civil Code (BGB), we shall therefore also be entitled without restriction to claims for defects if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence.
9.5 The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial duty to inspect and give notice of defects with the following proviso: Our duty to inspect upon delivery shall be limited to defects which become apparent during our incoming goods inspection under external appraisal including the delivery documents (e.g. transport damage, wrong and short delivery) or which are recognizable during our quality control by sampling and may be performed within 14 days after acceptance of the delivery. Insofar as acceptance has been agreed, there shall be no obligation to inspect. Otherwise, it shall depend on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later shall remain unaffected. Notwithstanding our duty to inspect, our complaint (notice of defect) shall be deemed to have been made without undue delay and in good time if it is sent within 14 days of discovery or, in the case of obvious defects, of delivery.
9.6 Subsequent performance shall also include removal of the defective goods and re-installation, provided that the goods were installed in another item or attached to another item in accordance with their type and intended use before the defect became apparent; our statutory claim to reimbursement of corresponding expenses (removal and installation costs) shall remain unaffected. The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, shall be borne by the Seller even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request for rectification of defects shall remain unaffected; in this respect, however, we shall only be liable if we recognized or were grossly negligent in not recognizing that there was no defect.
9.7 Without prejudice to our statutory rights and the provisions in para. 5, the following shall apply: If the Seller fails to meet its obligation of subsequent performance - at our option by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery) - within a reasonable period of time set by us, we may remedy the defect ourselves and demand reimbursement from the Seller of the expenses required for this purpose or a corresponding advance payment. If subsequent performance by the Seller has failed or is unreasonable for us (e.g. due to particular urgency, risk to operational safety or imminent occurrence of disproportionate damage), no deadline need be set; we shall inform the Seller of such circumstances without undue delay, if possible in advance.
9.8 Otherwise, in the event of a material defect or defect of title, we shall be entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provisions. In addition, we shall be entitled to claim damages and reimbursement of expenses in accordance with the statutory provisions.
We are entitled to withdraw from the contract if the use of the ordered goods is impossible or economically significantly impeded due to labor disputes, operational disruptions, accidents, warlike events, sales stagnation, official interventions, similar events or force majeure.
If one of the contracting parties suspends its payments or if insolvency proceedings are filed against its assets, the other party shall be entitled to withdraw from the contract for an unfulfilled part.
11.1 We shall be entitled to our legally determined claims for expenses and recourse within a supply chain (supplier recourse pursuant to Sections 478, 445a, 445b or Sections 445c, 327 para. 5, 327u German Civil Code) without limitation in addition to the claims for defects. In particular, we shall be entitled to demand exactly the type of subsequent performance (repair or replacement) from the Seller that we owe our customer in the individual case; in the case of goods with digital elements or other digital content, this shall also apply with regard to the provision of necessary updates. Our statutory right of choice (Section 439 (1) BGB) shall not be restricted hereby.
11.2 Before we acknowledge or fulfill a claim for defects asserted by our customer (including reimbursement of expenses pursuant to Sections 445a (1), 439 (2), (3), (6) sentence 2, 475 (4) of the German Civil Code (BGB)), we shall notify the seller and request a written statement, briefly explaining the facts of the case. If a substantiated statement is not made within a reasonable period of time and if no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, the Seller shall be responsible for proving the contrary.
11.3 Our claims from supplier recourse shall also apply if the defective goods have been combined with another product by us, our customer or a third party, e.g. by installation, attachment or installation, or have been further processed in any other way.
12.1 If the Seller is responsible for product damage, it shall indemnify us against third-party claims to the extent that the cause lies within its sphere of control and organization and it is liable itself in relation to third parties.
12.2 Within the scope of its indemnification obligation, the Seller shall reimburse expenses pursuant to Sections 683, 670 of the German Civil Code (BGB) arising from or in connection with a claim by third parties including recall actions carried out by us. We shall inform the Seller about the content and scope of recall measures - to the extent possible and reasonable - and give him the opportunity to comment. Further legal claims shall remain unaffected.
12.3 Unless otherwise agreed, Seller shall take out and maintain product liability insurance with a lump sum coverage of at least EUR 2 million per personal injury/property damage.
13.1 The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions, unless otherwise stipulated below.
13.2 Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims for defects shall be 3 years from the passing of risk. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance. The 3-year limitation period shall apply mutatis mutandis to claims arising from defects of title, whereby the statutory limitation period for third parties' claims in rem for surrender of possession (§ 438 para. 1 no. 1 BGB) shall remain unaffected; in addition, claims arising from defects of title shall in no case become time-barred as long as the third party can still assert the right against us - in particular in the absence of a limitation period.
13.3 The limitation period for claims based on defects shall be extended by the period of time between the notice of defect and the rectification of the defect. If the object of delivery/service is newly delivered, completely or partially subsequently requested or replaced, the limitation period for claims for defects for the newly delivered, replaced or completely or partially repaired object or corresponding partial component shall begin anew upon delivery/acceptance.
13.4 The limitation periods of the law on sales including the above extension shall apply - to the statutory extent - to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period shall apply (§§ 195, 199 BGB), unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.
14.1 These GPC and the contractual relationship between us and the Seller shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
14.2 If the Seller is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising from the contractual relationship shall be our registered office in Prien am Chiemsee. The same shall apply if the Seller is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation pursuant to these GPC or a prior individual agreement or at the general place of jurisdiction of the Seller. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.