Terms & Conditions
for supplies and services of the
Company
TSK Schill GmbH
Hämmerlestraße 7,
71126 Gäufelden-Nebringen
Stand: April 2018
consisting of: I. General Terms and Conditions for Deliveries and Services
I. General Terms and Conditions for Deliveries and Services
- Scope
- 1.1. Our GENERAL TERMS AND CONDITIONS apply exclusively. Insofar as these do not contain any regulations, the law applies. We do not recognize any terms and conditions of the contractual partner that conflict with or deviate from our GENERAL TERMS AND CONDITIONS or from the law to our disadvantage, unless we have expressly agreed to their validity in writing. Our GENERAL TERMS AND CONDITIONS shall also apply if our contractual services or deliveries are provided without reservation in knowledge of terms and conditions of the contractual partner that are contrary to or deviate from our GENERAL TERMS AND CONDITIONS or to our detriment from the law.
- 1.2. Our GENERAL TERMS AND CONDITIONS also apply to all future transactions with the contractual partner.
- 1.3. Our GENERAL TERMS AND CONDITIONS only apply to entrepreneurs, legal entities under public law or special funds under public law within the meaning of § 310 (1) of the German Civil Code (BGB).
- Offers and cost estimates, subsequent changes to the content of the contract, reservation of self-supply
- 2.1. Our offers and cost estimates are – unless expressly stated as binding – subject to change and non-binding. Special and stock offers are only valid while available.
- 2.2. We reserve all rights to all offer and contract documents without restriction – unless expressly agreed otherwise. Offer documents must be returned to us immediately upon our request if the order is not placed with us. The contractual partner cannot assert a right of retention in this regard.
- 2.3. Documents of the contractual partner may be made available by us to such third parties to whom we have lawfully transferred deliveries and services.
- 2.4. We reserve the right to make the following changes to the contract products after conclusion of the contract, provided that this is reasonable for the contractual partner:
- Product changes in the course of continuous product development and improvement;
- slight and insignificant variations in color, shape, design, dimensions, weight or quantity;
- customer deviations.
- 2.5. We will endeavor to take into account a request for changes by the contractual partner after the conclusion of the contract with regard to the deliveries and/or services subject to the contract, insofar as this is reasonable for us within the scope of our operational capacity. Insofar as the examination of the possibilities of changes or the actual implementation of the changes have an impact on the contractual service structure (remuneration, deadlines, etc.), a written adjustment of the contractual provisions must be made immediately. For the duration of the interruption, we may demand appropriate additional remuneration based on the hourly rates of those of our employees who could not be deployed elsewhere due to the examination of the request for change and the agreement on the adjustment of the contractual provisions. We may also charge an appropriate fee for a necessary examination as to whether and under what conditions the desired change can be carried out, provided that we point out to the contractual partner the necessity of the examination and gives the latter a corresponding audit order.
- 2.6. If errors on our part occur through no fault of our own when concluding the contract, for example due to transmission errors, misunderstandings, etc., compensation for damages on our part in accordance with § 122 BGB is excluded.
- 2.7. The conclusion of the contract is subject to correct and timely self-delivery by our suppliers. This only applies in the event that we are not responsible for the non-delivery, in particular if we conclude a congruent hedging transaction with our supplier. The contractual partner will be informed immediately of the unavailability of the services. The consideration will be refunded immediately. We will immediately present the cover agreement to the contractual partner and assign the resulting rights to him to the extent necessary.
- Prices, Terms of Payment, Reservation of Subsequent Performance
- 3.1. We reserve the right to change our prices appropriately if cost reductions or cost increases for which we are not responsible occur after the conclusion of the contract, in particular due to collective bargaining agreements or material price changes. We will provide proof of this to the contractual partner upon request.
- 3.2. Subject to a separate agreement ex works/warehouse, our prices are exclusive of postage, shipping, freight, packaging, insurance, set-up and assembly services. VAT will be invoiced additionally in the amount prescribed by law.
- 3.3. Unless otherwise agreed, payments by the contractual partner are due immediately and without deduction. The deduction of cash discount requires a special written agreement. The contractual partner shall be in default ten days after the due date without further explanation on our part, unless he has paid. Incidentally, the statutory provisions apply to the consequences of late payment.
- 3.4. In the event of a deferral, we are entitled to claim interest in accordance with the statutory default interest for the deferral period.
- 3.5. We are entitled to demand appropriate advance payments plus the statutory VAT amount attributable to them.
- Payments are accepted by bank transfer or letter of credit. The discount, expenses and costs associated with the collection of bank guarantees are to be borne by the contractual partner and are due for payment immediately. Bank and other guarantees are to be returned immediately after receipt of the item. Delay costs that are not caused by TSK Schill will be passed on to the contractual partner. Costs will be invoiced according to the actual costs incurred.
- 3.6. The contractual partner is only entitled to rights of set-off if his counterclaims have been legally established, undisputed or acknowledged. The contractual partner is only entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
- 3.7. In the event of defects, the contractual partner is not entitled to a right of retention, unless the delivery is obviously defective or the contractual partner is obviously entitled to refuse acceptance of our services; in such a case, the contractual partner is only entitled to retain the defects if the amount retained is in reasonable proportion to the defects and the expected costs of subsequent performance (in particular the remedy of defects).
- Delivery or performance time, impediments to performance for which they are not responsible, delay in delivery or performance, impossibility, packaging
- 4.1. Unless otherwise agreed, delivery is “ex works”, unpackaged. Even if we may be packaging, transport and all other packaging will not be taken back in accordance with the Packaging Regulations; pallets and exchange packaging are excluded. The contractual partner is obliged to ensure that the packaging is disposed of at its own expense.
- 4.2. The specified delivery or service times are only fixed dates if they are expressly specified as such.
- 4.3. Compliance with delivery or performance obligations, in particular delivery dates, requires:
- the timely and proper fulfilment of any obligations of cooperation on the part of the Contracting Party, in particular the receipt of documents and information to be provided by the Contracting Party;
- the clarification of all technical details with the contractual partner;
- the receipt of agreed advance payments or the opening of agreed letters of credit;
- the existence of any necessary regulatory approvals and licenses.
- The objection of non-performance of the contract is reserved.
- 4.4. Compliance with the delivery deadline is determined by the time at which the delivery takes place “ex works” or the contractual partner has been notified of the readiness for shipment.
- 4.5. Delays in delivery or performance for which we are not responsible:
- 4.5.1. We are not responsible for delays in delivery or performance due to the following delivery and performance impediments – unless a procurement risk or a guarantee has been assumed in exceptional cases with regard to compliance with deadlines, the same applies if these obstacles occur at our suppliers or their subcontractors:
- Circumstances of force majeure as well as obstacles to delivery and performance,
- which occur after the conclusion of the contract or become known to us through no fault of our own only after conclusion of the contract, and
- in respect of which we provide evidence that they could not have been foreseen and prevented by us even with due diligence and that we are not at fault for assumption, provision and avoidance in this respect.
- Under the aforementioned conditions – occurrence or disclosure through no fault of our own only after conclusion of the contract, un-foreseeability and unavoidability proven by us – these include, in particular: Legitimate industrial action (strikes and lockouts); Malfunctions; shortage of raw materials; Failure of operating and auxiliary materials; Shortage of staff.
- 4.5.2. Claims for damages by the contractual partner are to be incurred in the event of delays in delivery and performance within the meaning of No. 4.5.1. excluded.
- 4.5.3. In the event of a definitive impediment to delivery and performance within the meaning of No. 4.5.1. each party to the contract is entitled to immediate termination of the contract by rescission in accordance with the statutory provisions.
- 4.5.4. In the event of a temporary impediment to delivery and performance within the meaning of No. 4.5.1. we are entitled to postpone deliveries and services by the duration of the hindrance plus a reasonable start-up time. If we prove to the contractual partner an unreasonable impediment to delivery and performance within the meaning of § 275 (2) and (3) BGB, we are entitled to withdraw from the contract. The contractual partner is only entitled to a right of withdrawal under the conditions of the following No. 4.7. § 323 para. 4 BGB applies accordingly to our right of withdrawal. With regard to the right of withdrawal of the contractual partner, the regulations according to § 323 para. 4 – 6 BGB apply. The following apply to the legal consequences of withdrawal: § 326 BGB and the references therein correspondingly; deliveries or services already made by the contractual partner that have not been owed can then be reclaimed by the latter in accordance with §§ 346 – 348 BGB.
- 4.6. Delays in delivery or performance for which we are responsible: We are liable for delays in delivery or performance for which we are responsible in accordance with the statutory provisions with the following limitation of liability in terms of amount:
- 4.6.1. Damages due to delay in deliveries or services pursuant to Section 280 (2) in conjunction with Section 286 of the German Civil Code (BGB):
If there is no intentional or grossly negligent conduct on our part, our legal representatives or vicarious agents, we owe a lump-sum compensation for delay in the amount of 0.5% per completed week of the net invoice amount of the deliveries or services affected by the delay. But maximum 5% of the net invoice amount of the contractual delay. In the event of gross negligence on the part of us, our legal representatives or vicarious agents, the aforementioned liability for damages is limited to the foreseeable, typically occurring damage. - 4.6.2. Damages instead of performance according to § 281 BGB:
Our liability is limited to the foreseeable, typically occurring damage, unless the delay in delivery or performance is based on an intentional or grossly negligent breach of contract for which we, our legal representatives or vicarious agents are responsible - 4.6.3. The above limitations of liability do not apply,
- provided that the contractual partner has tied the continuation of its interest in performance to the timeliness of the performance in the contract (fixed transaction);
- if, by way of exception, we have expressly assumed a procurement risk or guarantee in relation to compliance with the deadline or deadline;
- in the event of liability for injury to life, limb or health.
- 4.6.1. Damages due to delay in deliveries or services pursuant to Section 280 (2) in conjunction with Section 286 of the German Civil Code (BGB):
- 4.7. If we can prove that we are not responsible for the delay, the contractual partner is only entitled to a right of withdrawal,
- if the latter has tied the continuation of his interest in performance to the timeliness of the performance in the contract (fixed transaction) or
- he proves that his interest in performance has ceased to exist due to the delay in delivery or performance or that it is unreasonable for him to maintain the contractual relationship.
- In all other respects, Section 323 (4) – (6) of the German Civil Code (BGB) applies. The legal consequences of withdrawal are governed by the statutory provisions (§§ 346 et seq. of the German Civil Code).
- 4.8. In the event of impossibility of our deliveries or services, we shall be liable in accordance with the statutory provisions with the following limitation of our liability in the amount: Unless there is intent or gross negligence on our part, our legal representatives or vicarious agents, our liability for damages and for reimbursement of futile expenses is limited to a total of 20% of the net invoice amount of our deliveries and services; in the case of grossly negligent conduct, to the foreseeable, typically occurring damage. This limitation of liability does not apply if we have exceptionally assumed a procurement risk or if liability is incurred due to injury to life, limb or health. The contractual partner’s statutory right to withdraw from the contract in the event of impossibility of our deliveries or services remains unaffected.
- 4.9. We are entitled to partial deliveries or services to the extent reasonable for the contractual partner.
- 4.10. If the contractual partner is in default of acceptance or culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage we incur, including any additional expenses. Further claims are reserved.
- Transfer of risk, insurance
- 5.1. The risk of accidental loss or accidental deterioration shall pass to the contractual partner as soon as the delivery has been handed over to the person or institution designated for the collection or execution of the delivery, but no later than when it leaves our factory. This also applies to any deliveries made by our own vehicles or free of carriage and packaging on the basis of a special agreement, and also in cases in which we have taken over assembly, installation or other services from the contractual partner.
- 5.2. In the event of default in acceptance, acceptance, retrieval or collection by the Contractual Partner or delay in our deliveries or services for reasons for which the Contractual Partner is responsible, the risk of accidental loss or accidental deterioration shall pass to the Contractual Partner at the time at which the latter is in default or on which the deliveries or services could have been made in accordance with the contract if the Contractual Partner had acted in accordance with his obligations.
- 5.3. At the request of the contractual partner, the delivery from the transfer of risk will be insured against theft, breakage, fire, water and transport damage as well as other insurable damages at his own expense.
- Ownership
- 6.1. We reserve ownership of the delivery items (“reserved delivery”) until receipt of all payments from the business relationship with the contractual partner. The retention of title also extends to the recognized balance if we post receivables from the contractual partner in current account (current account reservation). If a reciprocal liability is established on our part for the payment to be made to us for the conditional delivery, the retention of title does not expire before our bill of exchange liability expires.
- 6.2. The contractual partner is entitled to resell the conditional delivery in the ordinary course of business; however, he already assigns to us all claims in the amount of the final invoice amount (including VAT) of our claims that arise from the resale against his customers or third parties. If the contractual partner places the receivables from a resale of the reserved delivery in a current account relationship with its customer, the current account receivable is assigned in the amount of the recognized balance; the same applies to the “causal” balance in the event of the insolvency of the contractual partner. The contractual partner is also authorized to collect the assigned claims after their assignment. Our authority to collect the claims ourselves remains unaffected by this – subject to the insolvency regulations; however, we undertake not to collect the receivables as long as the contractual partner does not violate his contractual obligations, in particular duly fulfils his payment obligations, not in default of payment. and no application for the opening of insolvency proceedings has been filed or there is no suspension of payments. Transfer of title by way of security or pledge shall not be covered by the contractual partner’s power of sale.
- 6.3. In the event of the cessation of our obligation pursuant to No. 6.2., we shall be entitled – subject to the provisions of insolvency law – to revoke the right of resale and to demand the assignment of the contractual partner’s claims for restitution against third parties or to withdraw the reserved delivery after setting a reasonable period of time. The contractual partner is obliged to surrender; a right of retention by the contractual partner cannot be asserted against this claim for restitution. The withdrawal of the reserved goods by us constitutes a withdrawal from the contract. We may – subject to the insolvency regulations – appropriately exploit the reserved delivery withdrawn for the aforementioned reasons after prior threat and after setting a deadline; the proceeds of the realization are to be offset against the liabilities of the contractual partner – less reasonable realization costs. Under the conditions that entitle us to revoke the contractual partner’s right to resell, we can also revoke the collection authorization and demand that the contractual partner inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the associated documents and notify the debtors (third parties) of the assignment.
- 6.4. In the event of damage or loss of the reserved delivery as well as change of ownership and residence, the contractual partner must notify us immediately in writing. The same applies to seizures or other interventions by third parties so that we can file a lawsuit pursuant to Section 771 of the Code of Civil Procedure. If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of a lawsuit pursuant to Section 771 of the Code of Civil Procedure, the contractual partner shall be liable for the loss incurred by us. If the release of the reserved delivery is achieved without a lawsuit, the costs incurred in this process can also be charged to the contractual partner, as well as the costs of returning the garnished reserved delivery.
- 6.5. The processing or transformation of the reserved delivery by the contractual partner is always carried out for us. If the conditional delivery is processed with other items that do not belong to us, we acquire co-ownership of the new item in the ratio of the value of the reserved delivery (final invoice amount including VAT) to the values of the other processed items at the time of processing or transformation. Incidentally, the same applies to the item resulting from processing or transformation as to the reserved delivery. In the case of the item resulting from processing or transformation, the contractual partner is granted a right of expectation corresponding to his expectant right to the reserved delivery.
- 6.6. If the conditional delivery is inseparably mixed or combined with other items that do not belong to us, we acquire co-ownership of the new item in the ratio of the value of the reserved delivery (final invoice amount including VAT) to the values of the other mixed or combined items at the time of the mixing or combination. If the mixing or combination takes place in such a way that the property of the contractual partner is to be regarded as the main thing, it is deemed to have been agreed that the contractual partner transfers us proportionate co-ownership. The contractual partner shall hold the sole ownership or co-ownership for us.
- 6.7. In the event of the resale of our conditional delivery after processing or transformation, the contractual partner shall assign its remuneration claims to us in the amount of the final invoice amount (including VAT) of our receivables as security. If, due to the processing or transformation or the mixing or combination of the reserved delivery with other items that do not belong to us, we have only co-ownership in accordance with the above para. 6.5. or 6.6., the contractual partner’s claim for remuneration shall be assigned to us in advance only in proportion to the final amount charged by us for the reserved delivery, including VAT, to the final invoice amounts of the other items that do not belong to us. In all other respects, the above No. 6.2. to 6.4.
- 6.8. If the retention of title or assignment is not effective under foreign law in the area of which our reserved delivery is located, the security corresponding to the retention of title and the assignment in this area of law shall be deemed to have been agreed. If the cooperation of the contractual partner is necessary for the creation of such rights, he is obliged, at our request, to take all measures necessary to establish and maintain such rights.
- 6.9. The contractual partner is obliged to treat the reserved delivery with care and to maintain it at its own expense; In particular, the contractual partner is obliged to insure the reserved delivery at its own expense in our favor sufficiently at replacement value against theft, robbery, burglary, fire and water damage. The contractual partner assigns to us all insurance claims resulting from this with regard to the reserved delivery. We accept the assignment. In addition, we reserve the right to assert our claims for performance or damages.
- 6.10. The contractual partner also assigns to us the claims to secure our claims against him that arise from the connection of the reserved delivery with a property against a third party.
- 6.11. We undertake to release the securities to which we are entitled at the request of the contractual partner to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is up to us.
- 6.12. In the event of breach of contract on the part of the Purchaser, in particular in the event of default of payment, the Seller shall be entitled to take back the delivered items after a reminder and declaration of withdrawal and the Purchaser shall be obliged to surrender them. If the customer has fulfilled the contract, the contractor must return the items. If, due to the processing or transformation or the mixing or combination of the reserved delivery with other items that do not belong to us, we have only co-ownership in accordance with the above para. 6.5. or 6.6., the contractual partner’s claim for remuneration shall be assigned to us in advance only in proportion to the final amount charged by us for the reserved delivery, including VAT, to the final invoice amounts of the other items that do not belong to us. In all other respects, the above No. 6.2. to 6.4.
- Decrease
- 7.1. If the law on contracts for work and services applies to our deliveries or services, the contractual partner is obliged, at our discretion, to carry out a written preliminary acceptance in our factory and/or a written acceptance in his factory as soon as he has been notified of the completion of the delivery item or any agreed ready-to-use assembly or, in the case of any contractually provided testing, this has taken place. Acceptance cannot be refused due to insignificant defects. Acceptance shall be deemed to have taken place at the latest if the contractual partner does not accept our deliveries or services within a period of 30 days after delivery and does not report at least one significant defect within the period.
- 7.2. Upon acceptance, our liability for obvious defects ceases to apply, unless the contractual partner has reserved the right to assert them at the time of acceptance.
- 7.3. If a test has been agreed, the contractual partner undertakes to test the functions of the delivery item for the intended period. In addition to function, these tests must also include the safety-related test so that the regulations applicable to the respective industry, such as VDE, Machinery Directive, etc., are met.
- 7.4. We may also demand the execution of partial acceptances, provided that there are no objective reasons to the contrary and this is reasonable for the contractual partner.
- Description of services, liability for defects
- 8.1. The characteristics listed in our service descriptions comprehensively and conclusively determine the characteristics of our deliveries and services. In case of doubt, the descriptions of our deliveries and services are the subject of quality agreements and not of guarantees or assurances. In case of doubt, declarations on our part in connection with this contract do not contain any guarantees or assurances in the sense of an intensification of liability or the assumption of a special liability obligation. In case of doubt, only express written statements on our part with regard to the provision of guarantees and representations will be authoritative.
- 8.2. No warranty is assumed for damages due to the following reasons: unsuitable or improper use or operation, incorrect installation by the contractual partner or third parties, natural wear and tear, incorrect or negligent handling, unsuitable operating equipment, defective construction work, unsuitable building ground, replacement materials, chemical, electrochemical or electrical influences (if they are not attributable to us), improper and without prior approval by modifications or repair work carried out by the contractual partner or third parties. Likewise, no warranty is assumed as long as proper and maintenance-oriented machine maintenance is not carried out.
- 8.3. Claims for defects by the contractual partner do not exist in the event of only insignificant deviation from the agreed quality or in the event of only insignificant impairment of the usability of our deliveries or services.
- 8.4. The contractual partner’s rights to defects presuppose that the latter has duly complied with its obligations to inspect and complain under § 377 of the German Commercial Code.
- 8.5. If a defect exists, we are entitled, at our discretion, to subsequent performance in the form of a remedy of the defect or to deliver a new defect-free item. If one or both of these types of supplementary performance is impossible or disproportionate, we are entitled to refuse it. We may also refuse subsequent performance as long as the contractual partner does not fulfil its payment obligations towards us to an extent that corresponds to the defect-free part of the service provided. We are obliged to pay all expenses necessary for the purpose of subsequent performance, in particular transport, travel and to bear labor and material costs, insofar as these are not increased by the fact that the delivery has been brought to a place other than the place of performance, unless the transport corresponds to the intended use. We are also entitled to have the defect rectified by third parties. Replaced parts become our property.
- 8.6. In the event of impossibility or failure of subsequent performance, culpable or unreasonable delay or serious and final refusal of subsequent performance by us or unreasonableness of subsequent performance for the contractual partner, the latter shall be entitled, at its discretion, either to reduce the purchase price accordingly (reduction) or to withdraw from the contract (withdrawal).
- 8.7. To the extent that it follows from No. 8.8. and No. 8.9. unless otherwise requires, further claims of the contractual partner that are related to defects in our deliveries and services are excluded, regardless of the legal basis (in particular claims for damages due to defects and breaches of duty, tortious claims for compensation for property damage and claims for reimbursement of expenses); this applies in particular to claims for damage outside the delivery items, e.g. to other items of the contractual partner, as well as to the claim for compensation for lost profits.
- 8.8. The above no. 8.7. Disclaimer does not apply:
- 8.8.1. For damages resulting from injury to life, limb or health that are based on a culpable breach of duty on our part, our legal representatives or our vicarious agents;
- 8.8.2. for mandatory liability under the Product Liability Act;
- 8.8.3. in the event of culpable breach of a material contractual obligation or a “cardinal obligation” by us, our legal representatives or our vicarious agents; insofar as there is no intentional or grossly negligent breach of contract, liability for damages is limited to the foreseeable, typically occurring damage;
- 8.8.4. in the event of fraudulent concealment of a defect, the assumption of a guarantee or the assurance of a characteristic, if it is precisely a defect covered by this that triggers our liability;
- 8.8.5. for any other claim of the contractual partner for compensation of the damage instead of performance for which we are responsible, our legal representatives or our vicarious agents; insofar as there is no intentional or grossly negligent breach of contract, liability for damages is limited to the foreseeable, typically occurring damage;
- 8.8.6. For other damages based on an intentional or grossly negligent breach of duty on our part, our legal representatives or our vicarious agents; provided that there is no intentional breach of contract, liability for damages is limited to the foreseeable, typically occurring damage.
- 8.9. In the case of reimbursement of expenses, No. 8.8. accordingly.
- 8.10. The statutory provisions on the burden of proof are supplemented by the above provisions no. 8., in particular Sections 8.7 to 8.9.
- 8.11. Recourse claims of the contractual partner against us pursuant to § 478 BGB (recourse of the entrepreneur) exist only to the extent that the contractual partner has not made any agreements with his customer that go beyond the statutory claims for defects. In all other respects, claims arising from manufacturer’s recourse shall remain unaffected. We are obliged to pay all expenses necessary for the purpose of subsequent performance, in particular transport, travel and to bear labor and material costs, insofar as these are not increased by the fact that the delivery has been brought to a place other than the place of performance, unless the transport corresponds to the intended use. We are also entitled to have the defect rectified by third parties. Replaced parts become our property. We are obliged to pay all expenses necessary for the purpose of subsequent performance, in particular transport, travel and to bear labor and material costs, insofar as these are not increased by the fact that the delivery has been brought to a place other than the place of performance, unless the transport corresponds to the intended use. We are also entitled to have the defect rectified by third parties. Replaced parts become our property.
- Liability for ancillary duties
- If, due to the fault of us, our legal representatives or our vicarious agents, the delivered item cannot be used in accordance with the contract by the contractual partner as a result of omitted or incorrect execution of suggestions and consultations prior to the conclusion of the contract as well as other contractual ancillary obligations (in particular instructions for the operation and maintenance of the delivery item), the regulations shall apply to the exclusion of further claims of the contractual partner above no. 8.7. to 8.10.
- Joint liability, withdrawal of the contractual partner
- 10.1. The following provisions apply to claims of the contractual partner outside of the liability for material defects. Statutory or contractual rights and claims to which we are entitled shall not be excluded or restricted.
- 10.2. For liability for damages – subject to separately regulated liability for delay (Clause 4.6.) and impossibility (Clause 4.8.) – the provisions of Sections 8.7 and 8.8 above shall apply mutatis mutandis. Further liability for damages is excluded – regardless of the legal nature of the claim asserted. This applies in particular to claims for damages in addition to performance and damages instead of performance due to breaches of duty, as well as to tortious claims for compensation for property damage pursuant to § 823 of the German Civil Code.
- 10.3. The limitation according to No. 10.2 shall also apply to the extent that the contractual partner demands expenses.
- 10.4. Any fault on the part of our legal representatives and vicarious agents is attributable to us.
- 10.5. The statutory provisions on the burden of proof remain unaffected.
- 10.6. Insofar as liability towards us is excluded or limited, this also applies with regard to the personal liability for damages of our employees, employees, employees, representatives and vicarious agents.
- 10.7. The contractual partner can only withdraw from the contract within the framework of the statutory provisions if we are responsible for the breach of duty. However, in the cases of Section 8.6 (failed supplementary performance, etc.) and in the event of impossibility, the statutory requirements remain; for the right of withdrawal of the contractual partner in the event of delay in our deliveries or services, the provisions above No. 4.5.3., 4.5.4. and 4.7. In the event of breaches of duty, the contractual partner must declare within a reasonable period of time at our request whether he withdraws from the contract due to the breach of duty or insists on delivery.
- Prescription
- 11.1. The limitation period for claims and rights due to defects in the deliveries or services – regardless of the legal basis – is one year.
- 11.2. The limitation periods under No. 11.1 shall also apply to all claims for damages against us in connection with the defect – regardless of the legal basis of the claim. Insofar as there are claims for damages of any kind against us that are not related to a defect, the limitation period of No. 11.1.
- 11.3. The limitation periods under No. 11.1. and No. 11.2. do not apply
- in the case of intent;
- if we have fraudulently concealed the defect or provided a guarantee for the quality of the deliveries or services; in the case of fraudulent intent, instead of the information provided for in No. 11.1., the statutory limitation periods that would apply in the absence of malice, excluding the extension of the deadline in the case of malice pursuant to §§ 438 (3) and 634 a (3) of the German Civil Code;
- for claims for damages in cases of injury to life, limb, health or freedom;
- in the case of claims under the Product Liability Act;
- in the event of a grossly negligent breach of duty, or
- in the event of a breach of essential contractual obligations. In this respect, the statutory limitation periods apply.
- 11.4. Unless expressly provided otherwise, the statutory provisions on the start of the limitation period, the suspension of expiry, the suspension and the new start of time limits shall remain unaffected.
- 11.5. Claims for reduction and the exercise of a right of withdrawal are excluded insofar as the claim for subsequent performance is time-barred. In this case, however, the contractual partner may refuse to pay the remuneration to the extent that he would be entitled to do so on the basis of the withdrawal or reduction.
- Assignment of receivables by the contractual partner
Claims against us in relation to the deliveries or services to be provided by us may only be assigned with our prior written consent. - Place of performance, place of jurisdiction, applicable law, intra-Community acquisition, severability clause
- 13.1. Unless otherwise agreed, the place of performance is exclusively our place of business.
- 13.2. If the contractual partner is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the place of jurisdiction for all obligations arising from and in connection with the contractual relationship is our place of business or, at our discretion, also the registered office of the contractual partner. The above jurisdiction agreement also applies to contractual partners domiciled abroad.
- 13.3. For all rights and obligations arising from and in connection with the contractual relationship, the law of the Federal Republic of Germany shall apply exclusively and without regard to conflict of law provisions, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG: United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980).
- 13.4. Should a provision in these GENERAL TERMS AND CONDITIONS or a provision within the framework of other agreements between us and the contractual partner be or become invalid, this shall not affect the validity of all other provisions or agreements.
- 13.5. Contractual partners from EC member states are obliged to compensate us for any damage we may incur in the event of an intra-Community acquisition
- due to tax offences committed by the contractual partner himself or
- due to false or omitted information provided by the contractual partner about his circumstances relevant for taxation