General Terms and Conditions for the Precision Mechanic Trade
Status: November 27, 2003
Registered with the German Federal Cartel Office under B2-27000-BO-96-97/02 - published in the German Federal Gazette on November 27, 2003; recommended by the Bundesverband Metall (BVM) (German Metal Association)
§ 1 Validity of the terms and conditions
The following General Terms and Conditions are exclusively intended for use in business transactions. The company's deliveries, services and offers shall be made exclusively on the basis of these terms and conditions. Counter-confirmations of the customer with reference to his terms and conditions of business or purchase are hereby rejected.
§ 2 Offers and conclusion of contract
Offers contained in brochures, advertisements, etc. are - also with regard to price quotations - subject to change and non-binding. The company shall be bound by specially prepared offers for 30 calendar days from the date of the offer.
Subsidiary agreements, amendments, additional agreements and/or other deviations from these Terms and Conditions shall only be valid if the company has declared its consent in this respect. The written form requirement shall not apply in the case of subsequent subsidiary agreements, amendments and additional agreements to the order.
Information in offers and/or order confirmations of the company which is based on an obvious error, namely a clerical or calculation error, shall not be binding on the company. Rather, the obviously intended statement shall apply.
The company's quotation documents, drawings, descriptions, samples and cost estimates may not be passed on, published, reproduced or otherwise made available to third parties without the company's consent. Upon request, the documents shall be returned without retention of copies.
§ 3 Prices, price changes
The prices are net prices plus value added tax, which must be shown separately.
The prices include costs for packaging and freight.
If there are more than six months between the conclusion of the contract and the agreed and/or actual delivery date, the prices of the company valid at the time of delivery or provision shall apply. In the event of price increases on the part of his subsuppliers, increases in wage and transport costs or other unexpected cost increases, the company shall be entitled to demand negotiations on a revision of the price.
§ 4 Delivery times
Delivery times are subject to correct and timely delivery to us, unless a binding delivery time has been agreed in writing. If there is a possibility of a delay in delivery, the company shall inform the customer of this immediately after becoming aware of it.
If the delivery or service is delayed due to a circumstance for which the entrepreneur, his legal representatives or vicarious agents are responsible, liability shall be in accordance with the statutory provisions. In the event of slight negligence, liability shall be limited to the foreseeable damage typical for the contract. This principle shall apply in particular in the event of force majeure, strike, lockout, official orders, etc., even if these obstacles occur at the company's suppliers or their subcompanys. The duration of a period of grace to be set by the customer in accordance with the statutory provisions in the event of a delay in performance shall be fixed at two weeks, which shall commence upon receipt of the setting of the period of grace by the company.
§ 5 Shipment and transfer of risk
The risk shall pass to the customer as soon as the consignment has been handed over to the person carrying out the transport or has left the company's premises for the purpose of dispatch. If shipment is delayed or not carried out upon the request of the customer, the risk shall pass to the customer upon notification of readiness for shipment.
Upon the customer's request, deliveries shall be insured on his or her behalf and for his or her account.
§ 6 Claims for defects
If the service rendered by the company or the delivery item is defective, the company may, at its discretion, deliver a replacement or rectify the defect. Multiple rectifications - as a rule two - are permissible within a reasonable period of time.
The customer's right to assert claims arising from defects shall become statute-barred in all cases after 12 months from the date of transfer of risk, unless a longer period is prescribed by law or unless otherwise agreed.
Obvious defects in work performances can only be asserted after acceptance if they are reported to the company without delay. In all other respects, Section 640 (2) of the German Civil Code (BGB) shall apply. Otherwise, for the purpose of preserving the customer's claims for defects, defects must be notified to the company in writing without delay, but at the latest within two weeks after delivery. The defective items shall be kept ready for inspection by the company in the condition in which they are at the time the defect is discovered.
Insignificant, acceptable deviations in the dimensions and designs - in particular in the case of follow-up orders - do not entitle to complaints, unless absolute compliance has been explicitly agreed. Technical improvements as well as necessary technical modifications shall also be deemed to be in conformity with the contract insofar as they are reasonable and do not represent a deterioration of the usability.
If the company's operating or maintenance instructions are not followed, changes are made to the products, parts are replaced or consumables are used that do not comply with the original specifications, any warranty shall lapse if the customer does not refute a correspondingly substantiated claim that only one of these circumstances caused the defect.
Liability for normal wear and tear is excluded.
If the subsequent performance fails within a reasonable period of time, the customer may, at his discretion, demand a reduction of the price or cancellation of the contract.
The above provisions of this paragraph shall not apply to the sale of used items. These shall be delivered excluding any defect claims.
If the company is at the disposal of the customer beyond its legal and contractual obligations to provide information regarding the use of its product, it shall only be liable in accordance with § 7 if a special fee has been agreed for this.
§ 7 Limitation of liability
Claims for damages arising from positive breach of contract, from negligence and from tort, which are not at the same time based on the breach of a main contractual obligation by the company, are excluded both against the company and against its vicarious agents, unless the damage was caused intentionally or by gross negligence. This shall not apply to claims for damages arising from defects in the contractually assumed suitability, which are intended to protect the customer against the risk of consequential harm caused by a defect. Claims for damages in accordance with the law on liability for defective products shall remain unaffected, as shall liability for damage to life, limb or health.
§ 8 Retention of title
Until all claims to which the company is entitled against the customer for any legal reason have been fulfilled, the company retains ownership of the delivered items (reserved items).
The customer is obligated to immediately notify the company in writing of any seizure of the objects subject to retention of title and to inform the lien holders of the retention of title. The Customer shall not be entitled to sell, give away, pledge or assign by way of security the items delivered to him under retention of title, except in the cases set out in the following numbers.
If the delivery is made for a business operation maintained by the customer, the items may be resold in the ordinary course of business. In this case, the customer's claims against the customer arising from the sale are already assigned to the entrepreneur. In the event of resale of the items on credit, the ordering party shall for its part reserve ownership vis-à-vis its customer. The customer hereby assigns to the entrepreneur the rights and claims arising from this retention of title vis-à-vis the customer.
Any processing or modification of the retained goods by the customer shall be carried out by the customer on behalf of the company free of charge. In the event of processing, combining, mixing or blending of the retained goods with other goods not belonging to the company, the company shall be entitled to the resulting co-ownership share of the new item in the ratio of the factor value of the retained goods to the other processed goods at the time of processing, combining, mixing or blending. If the customer acquires sole ownership of a new item, the contracting parties agree that the customer shall grant the company co-ownership of the new item in the ratio of the factor value of the processed or combined, mixed or blended reserved items and shall keep it in safe custody for the company free of charge. If the retained goods are resold together with other goods, irrespective of whether without or after processing, combining, mixing or blending, the advance assignment agreed in No. 3 above shall only apply to the amount of the factor value of the retained goods that have been resold together with the other goods.
If retained goods are installed by or on behalf of the customer as essential components in the real property of a third party, the customer hereby assigns to the company any claims for payment against the third party or the party concerned, together with all ancillary rights, including the granting of a security mortgage.
If retained goods are installed as essential components in the real property of the customer, the customer hereby assigns to the company any claims arising from the sale of the real property or real property rights with all ancillary rights.
If the value of the securities existing for the company in accordance with the above provisions exceeds the value of the company's claims - not only temporarily - by a total of more than 20%, the company shall be obliged to release securities of its choice accordingly at the request of the orderer.
In the event that the customer acts in breach of the contract, in particular in the event of default in payment, the seller shall be entitled to take back the delivered items after issuing a reminder and a notice of withdrawal, and the customer shall be obliged to surrender them. If the customer has fulfilled the contract, the company shall return the items.
§ 9 Payment
Unless otherwise agreed, the company's invoices shall be payable without deduction after the invoice has been issued.
For deliveries with a total value of less than € 500.00, the company shall deliver plus freight and packaging.
The company expressly reserves the right to refuse checks or bills of exchange. Acceptance shall always be on account of performance only. Discount and bill charges shall be borne by the customer and are due immediately.
If the company becomes aware of circumstances that call into question the creditworthiness of the customer, in particular if the customer does not honor a check or stops payments, the company shall be entitled to declare the entire remaining debt due, even if the company has accepted checks. In addition, the company shall be entitled in this case to demand advance payments or the provision of security. If the customer permanently suspends his payments and/or if insolvency proceedings are filed against his assets, the company shall also be entitled to withdraw from the part of the contract that has not yet been fulfilled.
The company shall be entitled, despite any provisions of the customer to the contrary, to initially offset payments against the customer's older debts. The company shall inform the ordering party of this type of offsetting. If costs and interest have already been incurred, the company shall be entitled to offset the payment first against the costs, then against the interest and finally against the main delivery. If the customer is in default of payment, the company shall be entitled to charge the respective statutory default interest. The company reserves the right to claim further damages caused by the delay. In the aforementioned cases, the customer shall be at liberty to prove a lower damage, which shall then be decisive.
Offsetting on the part of the customer is excluded unless the counterclaims have been legally established or are not disputed by the company.
§ 10 Applicable law, place of jurisdiction, partial invalidity
The law of the Federal Republic of Germany shall apply to these Terms and Conditions and the entire legal relationship between the company and the customer.
Insofar as the customer is a merchant within the meaning of the Handelsgesetzbuch (German Commercial Code), a legal entity under public law or a special fund under public law, the place of business of the entrepreneur shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. Should any provision in these Terms and Conditions be or become invalid, this shall not affect the validity of all other provisions and agreements between the company and the customer.