Terms and Conditions
I. General Provisions and Scope
- Our Terms and Conditions of Sale and Delivery apply exclusively to every order placed with us; in the case of an ongoing business relationship, they also apply to all future transactions with the purchaser. They apply only to business customers (natural or legal persons or partnerships with legal capacity who, when entering into a legal transaction, are acting in the course of their commercial or independent professional activities). We do not recognize any conflicting or deviating terms and conditions of the purchaser, unless we have expressly agreed to their validity in writing. Such consent applies only to the specific case in question, not to previous or future deliveries. Our terms of delivery and payment also apply if we carry out the delivery without reservation despite being aware of conflicting or deviating terms and conditions of the purchaser.
II. Formation of Contracts and Contract Documents
- Our quotations are subject to change; they are intended as an invitation to the customer to submit an offer. Our cost estimates are non-binding.
- A contract with us is only concluded when we have accepted an order from the customer in writing, confirmed the customer’s declaration of acceptance in writing, or delivered the ordered goods or rendered the ordered services.
- All agreements made between us and the customer upon conclusion of the contract must be in writing. Our employees are not authorized to agree to any amendments or additions to the contract without observing the written form. Verbal or telephone amendments to the contract are therefore effective only with express subsequent approval if they were agreed upon by the customer with employees who are authorized to represent us by law or, in any other case, on the basis of a special power of attorney communicated to the customer in writing.
- Information regarding weights and dimensions contained in catalogs, brochures, circulars, advertisements, illustrations, and price lists is only approximately binding within the scope of customary commercial practice, unless it is expressly designated or agreed upon as binding.
- Plans and technical documents handed over to the customer before or after the conclusion of the contract remain our exclusive property. We reserve all copyrights and other intellectual property rights. Without our written consent, these documents may not be used for purposes unrelated to the contract, in particular they may not be reproduced or made available to third parties. Upon request, they must be returned to us immediately.
III. Prices and Payment
- Our prices are ex works, including loading at the factory, but excluding packaging, handling charges, and other shipping costs, plus the applicable statutory value-added tax.
- For contracts that provide for our delivery or performance only for a period exceeding two months after the conclusion of the contract, we reserve the right to adjust our prices accordingly if cost increases occur between the conclusion of the contract and its fulfillment, particularly due to wage agreements or increases in material prices. We will provide evidence of these to the customer upon request.
- Our invoices are due for payment immediately and without any deduction.
- The customer shall be in default upon receipt of a reminder after the payment due date, but no later than 30 days after the due date and receipt of our invoice or an equivalent request for payment.
- If the customer defaults on payment, we are entitled to charge default interest at a rate of 12% per annum, but at least interest at a rate of 8% above the base rate. In the former case, however, the customer is entitled to prove to us that we have incurred no damage or significantly less damage as a result of the default. If we can demonstrate higher damages resulting from the delay, we are entitled to claim them.
- If the customer is in default of payment for deliveries or services based on the same legal relationship, we are entitled to demand advance payment and to withhold goods not yet delivered or services not yet rendered. If, after the conclusion of the contract, it becomes apparent that our claim for payment is jeopardized by the customer’s inability to pay, we may set a reasonable deadline by which the customer must provide security. If this period expires without the provision of security, we are entitled to withdraw from the contract. This also applies if we are not obligated to perform in advance but must carry out preparatory work to ensure timely fulfillment of the order. In this case, agreed delivery periods shall be extended by the same amount of time that elapsed between our setting of the deadline and the provision of security. The customer shall only
- be entitled to set-off rights if his counterclaims have been legally established, are undisputed, or have been acknowledged by us. He shall only be authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
IV. Retention of Title
We reserve title to the delivered goods until all claims arising from the business relationship with the customer have been satisfied. In the case of an open account, the reserved title serves as security for the respective outstanding balance. If the customer acts in breach of contract, particularly in the event of default in payment, we are entitled to take back the delivered goods. The return of the delivered goods shall not be construed as a withdrawal from the contract.
The customer is obligated to store the goods subject to retention of title properly and to treat them with care, in particular to insure them at their own expense against fire, water, breakage, theft, and other damages at replacement value.
The buyer may neither pledge the goods subject to retention of title nor assign them as security prior to full payment. In the event of seizures or other interventions by third parties, the buyer must notify us immediately in writing. To the extent that the third party is unable to reimburse us for the costs of judicial or extrajudicial proceedings against it, the buyer shall be liable for the resulting loss.
The buyer is entitled to resell the goods subject to retention of title in the ordinary course of business, unless the buyer is in default of payment. Upon conclusion of the contract, the customer assigns to us, by way of security, all rights arising from the resale against his customers or third parties. The customer remains authorized to collect these claims even after the assignment. We are authorized to collect the claim ourselves, but will refrain from doing so as long as the buyer is not in default of payment and, in particular, no petition for the opening of insolvency proceedings has been filed. If this is the case, however, we may demand that the purchaser disclose to us the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and notify the debtors of the assignment.
The processing and transformation of the goods subject to retention of title by the purchaser shall always be carried out on our behalf. If the goods subject to retention of title are processed with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the goods subject to retention of title to the other processed items at the time of processing. The provisions applicable to the goods subject to retention of title shall also apply to the item created by processing.
If the goods subject to retention of title are combined or mixed with other items not belonging to us in such a way that they become essential components of a single item, we shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other combined or mixed items at the time of combination or mixing. If the combination or mixing occurs in such a way that the customer’s item is to be regarded as the principal item, it is agreed that the customer shall transfer proportional co-ownership to us. The customer shall hold the resulting sole or co-ownership in safekeeping for us. In all other respects, the same provisions apply to the item created by combination or mixing as to the item delivered under retention of title.
We undertake to release the securities to which we are entitled upon written request by the purchaser to the extent that the realizable value of the securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is at our discretion.
The customer is obligated to store the goods subject to retention of title properly and to treat them with care, in particular to insure them at their own expense against fire, water, breakage, theft, and other damages at replacement value.
The buyer may neither pledge the goods subject to retention of title nor assign them as security prior to full payment. In the event of seizures or other interventions by third parties, the buyer must notify us immediately in writing. To the extent that the third party is unable to reimburse us for the costs of judicial or extrajudicial proceedings against it, the buyer shall be liable for the resulting loss.
The buyer is entitled to resell the goods subject to retention of title in the ordinary course of business, unless the buyer is in default of payment. Upon conclusion of the contract, the customer assigns to us, by way of security, all rights arising from the resale against his customers or third parties. The customer remains authorized to collect these claims even after the assignment. We are authorized to collect the claim ourselves, but will refrain from doing so as long as the buyer is not in default of payment and, in particular, no petition for the opening of insolvency proceedings has been filed. If this is the case, however, we may demand that the purchaser disclose to us the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and notify the debtors of the assignment.
The processing and transformation of the goods subject to retention of title by the purchaser shall always be carried out on our behalf. If the goods subject to retention of title are processed with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the goods subject to retention of title to the other processed items at the time of processing. The provisions applicable to the goods subject to retention of title shall also apply to the item created by processing.
If the goods subject to retention of title are combined or mixed with other items not belonging to us in such a way that they become essential components of a single item, we shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other combined or mixed items at the time of combination or mixing. If the combination or mixing occurs in such a way that the customer’s item is to be regarded as the principal item, it is agreed that the customer shall transfer proportional co-ownership to us. The customer shall hold the resulting sole or co-ownership in safekeeping for us. In all other respects, the same provisions apply to the item created by combination or mixing as to the item delivered under retention of title.
We undertake to release the securities to which we are entitled upon written request by the purchaser to the extent that the realizable value of the securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is at our discretion.
V. Delivery Time
Delivery periods and dates are binding only if they have been expressly agreed upon in writing. Our fulfillment of our delivery obligation is contingent upon the clarification of all commercial and technical issues, the availability of the tools and/or molds required for the manufacture of the goods, and the timely and proper fulfillment of the purchaser’s obligations, in particular the performance of any and all acts of cooperation. If the purchaser fails to meet such obligations, the delivery period shall be extended accordingly. This does not apply if we are responsible for the delay.
We shall be deemed to have met the delivery deadline if, by the time it expires, the delivery item has left our factory or we have notified the purchaser that the delivery item is ready for shipment, unless, in exceptional cases, a duty to deliver or a duty to ship has been agreed upon. Where acceptance is required, the acceptance date shall be decisive—except in cases of justified refusal of acceptance—or, alternatively, the notification of readiness for acceptance.
Operational disruptions—both in our own operations and in third-party operations on which manufacturing or transport depends—caused by the occurrence of unforeseeable obstacles beyond our control (in particular force majeure and other extraordinary circumstances, such as labor disputes, governmental measures, and traffic disruptions) shall result in a reasonable extension of the delivery period, provided they affect the manufacture or delivery of the subject matter of the contract.
If we are culpably in default, our liability for damages resulting from the delay is limited to 5% of the purchase price. The Purchaser shall only have further claims in cases of intent, gross negligence, or where a fixed-date transaction has been agreed. In all cases where our liability exceeds compensation in the amount specified in the first sentence, as well as in the case of claims for damages in lieu of performance, our liability is limited in accordance with Section IX. (Liability).
Due to delayed performance, the purchaser may withdraw from the contract within the scope of statutory provisions only if we are in default with our performance.
For call-off orders without an agreed term, production batch sizes, or acceptance dates, we may demand a binding determination of these details no later than three months after order confirmation. If the customer fails to comply with this demand within three weeks, we are entitled to set a two-week grace period and, upon its unsuccessful expiration, to withdraw from the contract and/or claim damages.
If the customer requests a delay in shipment and we agree to this request, we are entitled to charge a flat storage fee of 0.5% of the invoice amount for the goods in question for each month or portion thereof, beginning with the notification of readiness for shipment. If we can demonstrate higher additional costs, we are entitled to claim these instead.
We shall be deemed to have met the delivery deadline if, by the time it expires, the delivery item has left our factory or we have notified the purchaser that the delivery item is ready for shipment, unless, in exceptional cases, a duty to deliver or a duty to ship has been agreed upon. Where acceptance is required, the acceptance date shall be decisive—except in cases of justified refusal of acceptance—or, alternatively, the notification of readiness for acceptance.
Operational disruptions—both in our own operations and in third-party operations on which manufacturing or transport depends—caused by the occurrence of unforeseeable obstacles beyond our control (in particular force majeure and other extraordinary circumstances, such as labor disputes, governmental measures, and traffic disruptions) shall result in a reasonable extension of the delivery period, provided they affect the manufacture or delivery of the subject matter of the contract.
If we are culpably in default, our liability for damages resulting from the delay is limited to 5% of the purchase price. The Purchaser shall only have further claims in cases of intent, gross negligence, or where a fixed-date transaction has been agreed. In all cases where our liability exceeds compensation in the amount specified in the first sentence, as well as in the case of claims for damages in lieu of performance, our liability is limited in accordance with Section IX. (Liability).
Due to delayed performance, the purchaser may withdraw from the contract within the scope of statutory provisions only if we are in default with our performance.
For call-off orders without an agreed term, production batch sizes, or acceptance dates, we may demand a binding determination of these details no later than three months after order confirmation. If the customer fails to comply with this demand within three weeks, we are entitled to set a two-week grace period and, upon its unsuccessful expiration, to withdraw from the contract and/or claim damages.
If the customer requests a delay in shipment and we agree to this request, we are entitled to charge a flat storage fee of 0.5% of the invoice amount for the goods in question for each month or portion thereof, beginning with the notification of readiness for shipment. If we can demonstrate higher additional costs, we are entitled to claim these instead.
VI. Transfer of Risk, Partial Deliveries, and Packaging
- We deliver exclusively ex works and thus at the buyer’s risk, unless otherwise agreed in individual cases. The current version of the Incoterms applies, unless otherwise agreed. If, in exceptional cases, we have undertaken to ship the delivery item, the risk of accidental loss and accidental deterioration of the delivery item shall pass to the purchaser upon its delivery to the forwarding agent, the carrier, or any other person designated to carry out the shipment, even if we bear the costs of shipment. Unless the purchaser issues specific instructions, we are free to choose the method of shipment and the means of transport. We will only take out transport insurance upon the purchaser’s express instruction and at the purchaser’s expense.
- To the extent that acceptance is required, it shall be decisive for the transfer of risk. It must be carried out immediately upon the delivery date, at the latest following our notification that the goods are ready for acceptance. The customer may not refuse acceptance in the event of a minor defect. Failure by the customer to accept the goods within a reasonable period specified by us, despite being obligated to do so, shall be deemed equivalent to acceptance.
- The risk of accidental loss and accidental deterioration of the goods shall pass to the customer even if the customer is in default of acceptance.
- Partial deliveries are permitted to a reasonable extent.
- To the extent that we handle the packaging of the goods, this is done on behalf of the purchaser. The purchaser bears the packaging costs. If the purchaser is entitled to return the transport packaging, they must return the packaging materials to our place of business at their own risk and expense.
VII. Material Defects
- The purchaser must inspect the goods delivered by us immediately upon delivery in the ordinary course of business and, if a defect is found, notify us immediately in writing. If the purchaser fails to fulfill this obligation, the delivery shall be deemed accepted. If a defect becomes apparent at a later date, we must be notified of the defect in writing immediately upon discovery; otherwise, the delivery shall also be deemed accepted in this respect.
- All parts or services that exhibit a material defect whose cause already existed at the time of transfer of risk—which the purchaser must always prove—shall, at our discretion, be repaired, replaced, or re-performed free of charge.
- The customer must, upon prior agreement, grant us the necessary time and opportunity to carry out all repairs and replacement deliveries that we deem necessary. If we have culpably failed to remedy a defect within a reasonable period set by the customer, the customer is entitled to remedy the defect themselves or have it remedied by third parties and to demand reimbursement of the necessary costs from us. In urgent cases where operational safety is at risk or to prevent disproportionately large damages, no deadline need be set. In such a case, however, we must be notified immediately in writing.
- If a reasonable number of repairs or replacement deliveries fail, the customer may—without prejudice to any claims for damages under Section IX. (Liability)—withdraw from the contract or reduce the remuneration within the scope of statutory provisions. We shall not bear any transport,
- travel, labor, or material costs incurred for the purpose of subsequent performance to the extent that these costs increase because the delivery item has been moved after delivery to a location other than the purchaser’s place of business, unless such movement corresponds to its intended use.
- The purchaser’s claims for defects shall become time-barred 12 months after delivery of the delivery item. If acceptance is required, the date of acceptance shall determine the start of this period. For defective delivery items that were used in accordance with their customary use for a structure and caused its defectiveness, the statutory periods apply. These also apply to the extent that we have assumed a guarantee regarding the quality of the delivery item, in cases of fraudulent concealment of a defect, in cases of injury to life, limb, or health, as well as in cases of intentional or grossly negligent breaches of duty.
- Claims for defects do not exist in the case of only an insignificant deviation from the agreed quality, in the case of only an insignificant impairment of usability, in the case of natural wear and tear, or in the case of damage occurring after the transfer of risk as a result of unsuitable or improper use, faulty or negligent handling, faulty assembly, excessive strain, or damage arising from special external influences not provided for in the contract.
- For claims for damages or claims for reimbursement of futile expenses in lieu thereof, the provisions of Section IX. (Liability) shall apply. Any further claims or claims other than those regulated under Section VII against us and our vicarious agents due to a material defect are excluded.
- The contractor’s right of recourse under Sections 478, 479 of the German Civil Code (BGB) remains unaffected by the foregoing provisions.
VIII. Legal Defects
- In the event of legal defects, the provisions regarding material defects (Section VII), in particular the time limit specified in Section VII.6, shall apply mutatis mutandis.
- Unless otherwise agreed, we are obligated to deliver the goods within Germany only free of third-party industrial property rights and copyrights. If a third party asserts justified claims against the Purchaser due to an infringement of intellectual property rights arising from deliveries made by us and used in accordance with the contract, we shall be liable only to the extent that the Purchaser immediately notifies us in writing of the claims asserted by the third party, does not acknowledge any infringement, and we reserve the right to take all defensive measures and conduct settlement negotiations.
- Claims by the purchaser arising from the infringement of third-party intellectual property rights are excluded to the extent that the purchaser is responsible for the infringement or that it is caused by specific instructions from the purchaser, by a use unforeseeable by us, or by the fact that the goods have been modified by the purchaser or used in a manner not in accordance with the contract.
IX. Liability
- Claims for damages against us generally exist only if we or our vicarious agents have acted with intent or gross negligence. In the event of a breach of material contractual obligations, we are also liable in cases of simple negligence. In such cases, however, our liability is limited to foreseeable damages typical for this type of contract.
- The foregoing limitation of liability does not apply in cases of injury to life, limb, or health, nor to claims under the Product Liability Act. It also does not apply in cases of liability for fraudulent concealment of defects or for the assumption of a warranty.
- The Purchaser shall inform us in advance—to the extent possible and reasonable—of the content and scope of any recall measures and give us the opportunity to comment.
- To the extent that our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives, and vicarious agents.
X. Tools and Molds
- To the extent that we manufacture tools and/or molds for the production of the ordered goods, we retain ownership of such tools and molds, even if the customer bears all or part of the costs for their manufacture.
- The production costs to be borne by the customer will be invoiced separately from the delivered goods. Unless otherwise agreed, 50% of the invoice amount is due for payment without deduction upon order confirmation and 50% of the invoice amount is due for payment without deduction upon notification of completion and handover of the sample. The payment obligation remains in effect even if the Customer does not accept the goods specified in the order confirmation, or does not accept them in full, unless we are responsible for the non-acceptance or partial acceptance. If the customer has been charged only a portion of the costs, they must reimburse our share of the costs for the manufacture of the tools and/or molds in full or in part if they are responsible for the non-acceptance or partial acceptance. The portion of costs to be reimbursed in the event of partial acceptance is calculated based on the ratio of the accepted quantity of goods to the ordered quantity.
- We shall store tools and molds free of charge for three years following the last delivery to the customer for possible use in further deliveries to the customer. If the customer notifies us by the end of this period that further goods will be ordered within one year for the production of which the tools and/or molds are required, we shall continue to store the tools and molds during this period. Upon expiration of the storage period, we are free to use the tools and molds for our own production or for orders from third parties.
- During the storage period, we bear the costs of maintenance and proper storage, as well as the risk of damage or destruction of the tools and/or molds. If tools and/or molds must be replaced due to wear and tear resulting from the production of goods for the Customer, however, the Customer shall bear these costs.
- The Customer is aware that the tools and molds it has commissioned embody significant development know-how and that we have a particular interest in maintaining confidentiality regarding these. For this reason, it is agreed that the Customer shall have no claim to the surrender of the tools and molds at any time, regardless of the legal basis, even if the Customer fully assumes the tool costs and/or upon termination of the supply relationship. The Customer’s right to demand monetary compensation where the statutory requirements are met remains unaffected.
XI. Indemnification for Claims Arising from Infringement of Intellectual Property Rights
- If we are to deliver goods based on drawings, models, samples, or using parts provided by the customer, the customer warrants that this will not infringe upon any third-party intellectual property rights in Germany or abroad, particularly in the country of destination for the goods. Upon our first written
- request, the customer must indemnify us against any claims by third parties and compensate us for any resulting damages. The indemnity obligation encompasses all costs necessarily incurred by us arising from or in connection with the claim by a third party.
- If a third party prohibits us from manufacturing or delivering the goods by invoking a property right belonging to them, we are entitled—without examining the legal situation—to suspend work until the legal situation has been clarified by the customer and the third party. If, due to the delay, it is no longer reasonable for us to continue with the order, we are entitled to withdraw from the contract.
XII. Jurisdiction, Place of Performance, and Governing Law
- The exclusive venue for all disputes arising directly or indirectly from the contractual relationship in dealings with merchants, legal entities under public law, or special funds under public law is the Local Court of Weilheim / Regional Court of Munich II. However, we are also entitled to assert claims against the purchaser before the court within whose jurisdiction the purchaser’s place of business is located.
- The place of performance is our registered office in Peiting, unless otherwise agreed in individual cases. The contractual
- relationship is governed by German law, excluding the United Nations Convention on Contracts for the International Sale of Goods.
Version: October 2024