for deliveries and services as well as problem solving by
Weiss Maschinen GmbH
Langgewann 4, 76467 Bietigheim, Germany
valid from: July 2019
consisting of: I. General conditions for deliveries and services
II. General conditions for problem solving
I. General conditions for deliveries and services
1. Scope
1.1. Our general terms and conditions apply exclusively. If they do not contain any regulations, the law applies. We do not recognize any terms and conditions of the contractual partner that contradict 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 the knowledge of contradicting or deviating from our GENERAL TERMS AND CONDITIONS or to our disadvantage from the law of the contractual partner.
1.2. Our GENERAL TERMS AND CONDITIONS also apply to all future business 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 para. 1 German Civil Code.
2. 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 designated as fixed – subject to change and are non-binding.
2.2. Unless expressly agreed otherwise, we reserve all rights to all offer and contract documents without restriction. Offer documents are to be returned to us immediately at our request if the order is not placed with us. The contractual partner cannot assert a right of retention in this regard.
2.3. We may make documents of the contractual partner accessible to third parties to whom we have permissibly transferred deliveries and services.
2.4. We reserve the right to make the following changes to the contractual products after the conclusion of the contract, provided this is reasonable for the contractual partner:
– Product changes in the course of constant product development and improvement;
– minor and insignificant deviations in color, shape, design, size, weight or quantity;
– usual deviations.
2.5. The contractual partner is obliged to point this out to us when placing the order, if under no circumstances his requirements and specifications may be deviated from.
2.6. We endeavor to take into account a change request made by the contractual partner after the conclusion of the contract with regard to the contractual deliveries and / or services, insofar as this is reasonable for us within the scope of our operational efficiency.
Insofar as the examination of the change options or the actual implementation of the changes have an impact on the contractual performance structure (remuneration, deadlines, etc.), the contractual provisions must be adjusted in writing without delay. For the duration of the interruption, based on the review of the change request and the agreement on the adjustment of the contractual provisions, we can demand appropriate additional remuneration based on the hourly rates of those of our employees who could not be deployed elsewhere due to the interruption.
We may also request an appropriate remuneration for a necessary examination of whether and under what conditions the desired change can be carried out, provided that we inform the contractual partner of the necessity of the examination and they issue a corresponding examination order.
2.7. If there are errors on our part through no fault of our own when concluding the contract, for example due to transmission errors, misunderstandings, etc., we shall not be entitled to compensation in accordance with § 122 German Civil Code.
2.8. The conclusion of the contract is subject to the correct and timely delivery by our suppliers. This only applies in the event that we are not responsible for the non-delivery, in particular when concluding a congruent hedging transaction with our supplier.
The contractual partner will be informed immediately about the unavailability of the services. The consideration will be refunded immediately. We will immediately submit the cover contract to the contractual partner and assign the resulting rights to him to the extent required.
3. Prices, terms of payment, reservation of supplementary performance
3.1. We reserve the right to change our prices appropriately if, after the conclusion of the contract, cost reductions or cost increases for which we are not responsible, in particular due to collective agreements or changes in material prices, occur. We will provide evidence of this to the contractual partner upon request.
3.2. Unless otherwise agreed, our prices are ex works / warehouse excluding postage, shipping, freight, packaging, insurance, installation and assembly services. The value added tax will be invoiced additionally in the respective legally prescribed amount.
3.3. Unless otherwise agreed, payments by the contractual partner are due immediately and without any deductions. Deduction of discount requires special written agreement. The contractual partner is in default ten days after the due date without further declarations on our part, provided that he has not paid. The statutory provisions apply to the consequences of default in 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 reasonable advance payments plus the applicable statutory value-added tax.
3.6. Bills of exchange and checks are only accepted on account of payment, bills of exchange only with prior written agreement. The discount, the expenses and the costs associated with the collection of the bill of exchange and check amount are to be borne by the contractual partner and are due for payment immediately. A fulfillment effect only occurs when the checks or bills of exchange have been redeemed and we are released from any liability.
3.7. The contractual partner is only entitled to set-off rights if his counterclaims have been legally established, are undisputed or recognized. The contractual partner is only authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship.
3.8. In the event of defects being present, 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 to accept our services; in such a case, the contractual partner is only entitled to withhold payment if the amount withheld is in reasonable proportion to the defects and the anticipated costs of subsequent performance (in particular to remedy the defect). The contractual partner is not entitled to assert claims and rights due to defects if he has not made due payments and the amount due is in reasonable proportion to the value of the defective deliveries or services.
4. Delivery or performance time, performance obstacles for which we are not responsible, delay in delivery or performance, impossibility, packaging
4.1. Unless otherwise agreed, delivery is made “ex works”, unpacked. Even with any packaging by us, transport and all other packaging will not be taken back in accordance with the packaging regulations; except for pallets and exchange packaging. The contractual partner is obliged to dispose of the packaging 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 and service obligations, in particular delivery dates, requires:
– the timely and proper fulfillment of any cooperation obligations of the contractual partner, in particular the receipt of documents and information to be provided by the contractual partner;
– 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 official permits and licenses.
The exception of the unfulfilled contract remains reserved.
4.4. The point in time at which the delivery takes place “ex works” or the contractual partner has been notified of readiness for dispatch is decisive for compliance with the delivery period.
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 obstacles to delivery and performance – unless a procurement risk or a guarantee were exceptionally assumed with regard to compliance with deadlines or deadlines – the same applies if these obstacles are with our suppliers or their sub-suppliers enter:
Circumstances of force majeure as well as delivery and performance obstacles,
– which occur after the conclusion of the contract or become known to us after the conclusion of the contract through no fault of our own and
– with regard to which we have provided evidence that we could not foresee and prevent them even with the necessary care and that we are not responsible for any takeover, precautionary or avoidance negligence.
Under the aforementioned conditions – occurrence or involuntary discovery only after conclusion of the contract, unpredictability and inevitability proven by us – these include in particular:
Justified industrial action (strikes and lockouts); Operational disruptions; Shortage of raw materials; Failure of operating and auxiliary materials; Shortage of staff.
4.5.2. Claims for damages of the contractual partner are in the case of delivery and service delays within the meaning of no. 4.5.1. is excluded.
4.5.3. In the event of a definitive obstacle to delivery and performance within the meaning of no. 4.5.1. each contracting party is entitled to terminate the contract immediately by withdrawing from the contract in accordance with the statutory provisions.
4.5.4. In the event of a temporary obstacle to delivery and performance within the meaning of no. 4.5.1. we are entitled to cancel deliveries and services for the duration of the hindrance plus postpone a reasonable lead time. If we assign the contractual partner an unreasonable delivery and service impediment within the meaning of § 275 section 2 and 3 German Civil Code, we are entitled to withdraw from the contract. The contractual partner is only entitled to withdraw from the contract under the prerequisites of no. 4.7. .
Section 323 (4) of the German Civil Code (BGB) shall apply accordingly to our right of withdrawal. With regard to the contracting party’s right of withdrawal, the regulations pursuant to § 323 para. 4 – 6 BGB. For the legal consequences of the withdrawal, § 326 German Civil Code and the references there apply accordingly; Deliveries or services that have already taken place but not owed by the contractual partner can then be reclaimed by the contractual partner in accordance with §§ 346 – 348 German Civil Code.
4.6. Delivery or service delays for which we are responsible:
We are liable for delivery or service delays for which we are responsible in accordance with the statutory provisions with the following limitation of liability according to the amount:
4.6.1. Compensation for delay in deliveries or services pursuant to § 280 para. 2 in conjunction with § 286 BGB:
For each full week of delay, we shall owe a lump-sum compensation for delay in the amount of 0.5% of the net invoice amount of the deliveries or services affected by the delay, but not more than a total of 5% of the net invoice amount.
4.6.2. Compensation for damages instead of performance according to § 281 German Civil Code:
Our liability is limited to the foreseeable, typically occurring damage.
4.6.3. The above limitations of liability do not apply,
– if the contractual partner has tied the continuation of his business interest to the timeliness of the performance in the contract (firm deal);
– if, in exceptional cases, we have expressly assumed a procurement risk or a guarantee with regard to compliance with deadlines;
– in the event of liability due to injury to life, body or health.
4.7. If we can provide evidence that we are not responsible for the delay, the contractual partner is entitled to withdraw from the contract only
– if he has bound the continuation of his business interest to the timeliness of the business in the contract (fixed deal) or
– he proves that due to the delay in delivery or service provision his interest in performance no longer exists or that the maintenance of the contractual relationship is unreasonable for him.
In all other respects, section 323 (4) – (6) of the German Civil Code (bgb) applies. The legal regulations are decisive for the legal consequences of the withdrawal (§§ 346 ff. German Civil Code (BGB).
4.8. In the event of the impossibility of our deliveries or services, we are liable in accordance with the statutory provisions with the following limitation of our liability according to the amount:
Unless there is willful intent or gross negligence on our part, our legal representatives or vicarious agents, our liability is limited; in the case of grossly negligent behavior it is limited to the foreseeable, typically occurring damage. This limitation of liability does not apply if we have taken on a procurement risk as an exception or if we are liable for injury to life, limb or health.
The contractual partner’s statutory right to withdraw from the contract if our deliveries or services are impossibility to be performed remains unaffected.
4.9. We are entitled to partial deliveries or partial services to a reasonable extent for the contractual partner.
4.10. If the contractual partner is in default of acceptance or if he culpably breaches other obligations to cooperate, we are entitled to demand compensation for the damage we incur, including any additional expenses. We reserve the right to further claims.
5. transfer of perils, insurance
5.1. The risk of accidental loss or accidental deterioration is transferred to the contractual partner as soon as the delivery has been handed over to the person or institution intended to collect or carry out the delivery, but no later than when it leaves our factory. This also applies to any deliveries made on the basis of a special agreement by our own vehicles or freight and packaging-free deliveries and also in cases in which we have taken over assembly, installation or other services at the contractual partner.
5.2. In the event of a delay in acceptance, relieve, calling or collection by the contractual partner, or a 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 point in time at which the latter is in default which the deliveries or services could have been made in accordance with the contract had the contractual partner acted in accordance with the contract.
5.3. At the request of the contractual partner and at his own expense, the delivery will be insured against theft, breakage, fire, water and transport damage as well as other insurable damage from the transfer of risk.
6. Retention of Title
6.1. We reserve the title to the delivery items (“conditional delivery”) until all payments from the business relationship with the contractual partner have been received. The retention of title also extends to the recognized balance if we post claims against the contractual partner in a current account (current account reservation). If a bill of exchange liability is established on our part to effect the payments to be made to us for the reserved delivery, the retention of title does not expire before our liability on a bill of exchange has expired; If the check / bill of exchange procedure is agreed with the contractual partner, the retention also extends to the redemption of the bill of exchange accepted by us by the contractual partner and does not expire when the check received is credited to us.
6.2. The contractual partner is entitled to resell the reserved delivery in the ordinary course of business; However, he already now assigns to us all claims in the amount of the final invoice amount (including VAT) of our claims that arise from the resale to his customers or third parties. If the contractual partner places the claims from a resale of the reserved delivery in an existing current account relationship with its customer, the current account claim 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 authorized to collect the assigned claims even after they have been assigned. Our authorization to collect the claims ourselves remains – subject to the insolvency regulations – unaffected by this; however, we undertake not to collect the claims as long as the contractual partner does not breach its contractual obligations, in particular duly fulfills its payment obligations, does not fall into arrears, has not filed for insolvency proceedings or has not suspended payments.
Assignment by way of security or pledging are not covered by the sales authorization of the contractual partner. .
6.3. In the event that we cease to be obliged in accordance with Section 6.2. above not to collect the claims ourselves, we shall be entitled – subject to the provisions of insolvency law – to revoke the right of resale and to demand the assignment of the contracting party’s claims for surrender against third parties or, after setting a reasonable deadline, to take back the reserved delivery. The contractual partner is obliged to surrender; The contractual partner cannot assert a right of retention against this claim for surrender. If we take back the goods subject to retention of title, we shall withdraw from the contract.
Subject to the provisions of insolvency law, we may appropriately utilize the reserved delivery that has been withdrawn for the reasons mentioned above, after prior warning and after setting a deadline; the sales proceeds are to be offset against the contractual partner’s liabilities – minus reasonable sales costs.
Under the conditions that entitle us to revoke the contractual partner’s authorization to resell, we can also revoke the authorization to collect and demand that the contractual partner notify us of the assigned claims and their debtors, provide all information required for collection, hand over the associated documents and notifies the debtors (third parties) of the assignment.
6.4. In the event of damage or loss of the reserved delivery as well as a change of ownership or change of residence, the contractual partner must notify us immediately in writing. The same applies to garnishments or other interventions by third parties, so that we can bring an action in accordance with German Civil Process Order (ZPO) § 771. If the third party is unable to reimburse us for the judicial and extrajudicial costs of a lawsuit in accordance with § 771 of the German Civil Process Order (ZPO), the contractual partner is liable for the loss we incur. If the release of the reserved delivery is achieved without a process, the costs incurred can also be charged to the contractual partner, as can the costs of bringing back the attached reserved delivery.
6.5. The processing or transformation of the reserved delivery by the contractual partner is always carried out for us. If the reserved 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.
The same applies to the item resulting from processing or transformation as to the reserved delivery. The contractual partner is granted an expectant right corresponding to his expectant right to the reserved delivery for the item resulting from processing or transformation.
6.6. If the reserved 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 mixing or connection. If the mixing or combination takes place in such a way that the contractual partner’s item is to be regarded as the main item, it is agreed that the contractual partner transfers proportional co-ownership to us. The contractual partner shall keep the sole ownership or the joint ownership for us.
6.7. In the event of the resale of our reserved delivery after processing or reshaping, the contractual partner hereby assigns to us as a precaution his remuneration claims in the amount of the final invoice amount (including VAT) of our claims.
Due to the processing or remodeling or the mixing or combination of the reserved delivery with other items that do not belong to us, we only have co-ownership in accordance with the preceding paragraph. 6.5. or 6.6. the contracting party’s claim to remuneration shall be limited to the ratio of the the ratio of the final amount invoiced by us for the reserved delivery, including value added tax to the final invoice amounts of the other items not belonging to us. other items not belonging to us shall be assigned to us in advance.
In addition, the preceding paragraphs 6.2 to 6.4 apply to the claims assigned in advance. to 6.4. entsprechend. –
6.8. If the retention of title or the 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 legal area 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 that are 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 his own expense; The contractual partner is particularly obliged to insure the reserved delivery at his own expense and in our favor, sufficiently at replacement value against theft, robbery, burglary, fire and water damage. The contractual partner hereby assigns to us all insurance claims arising from this with regard to the reserved delivery. We accept the assignment.
In addition, we reserve the right to assert our performance claims or claims for damages.
6.10. The contractual partner also assigns to us the claims to secure our claims against him, which 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 insofar as 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 incumbent on us.
7. Acceptance
7.1. If work contract law applies to our deliveries or services, the contractual partner is obliged, at our option, to have 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 any contractually stipulated testing has taken place.
Acceptance cannot be refused due to minor defects.
The acceptance is deemed to have taken place if the contractual partner does not accept our deliveries or services within a reasonable period determined by us, although it is obliged to do so.
7.2. Upon acceptance, our liability for obvious defects lapses, unless the contractual partner has reserved the right to assert them during acceptance.
7.3. If a trial has been agreed, the contractual partner undertakes to test the functions of the delivery item for the intended period. In addition to the function, these tests must also include the safety test so that the regulations applicable to the respective industry, such as VDE, machine protection law, etc., are met.
7.4. We may also demand the performance of partial acceptances, provided that there are no objective reasons to the contrary and this is reasonable for the contractual partner.
8. Description of services, liability for defects
8.1. The properties listed in our service descriptions comprehensively and conclusively define the properties of our deliveries and services. In case of doubt, the descriptions of our deliveries and services are the subject of quality agreements and not guarantees or assurances. Declarations on our part in connection with this contract do not contain any guarantees or assurances in the sense of a tightening of liability or assumption of a special liability obligation. In case of doubt, only express written declarations on our part with regard to the issuance of guarantees and assurances are decisive.
8.2. No guarantee is given for damage for the following reasons: unsuitable or improper use or operation, incorrect assembly by the contractual partner or third parties, natural wear and tear, incorrect or negligent treatment, unsuitable operating resources, defective construction work, unsuitable building ground, replacement materials, chemical, electrochemical or electrical Influences (if we are not responsible for them), improper changes or repairs carried out by the contractual partner or third parties without our prior approval.
8.3. Claims for defects by the contractual partner do not exist in the case of only insignificant deviations from the agreed quality or in the case of only insignificant impairment of the usability of our deliveries or services.
8.4. The contractual partner’s rights of defects presuppose that he has duly complied with his inspection and complaint obligations according to § 377 of the German Commercial Code (HGB).
8.5. If there is a defect, we are entitled, at our discretion, to supplementary performance in the form of rectifying the defect or delivering a new, defect-free item. If one of the two or both types of this supplementary performance is impossible or disproportionate, we are entitled to refuse it.
We can also refuse supplementary performance as long as the contractual partner does not fulfill its payment obligations to us to an extent that corresponds to the defect-free part of the service provided.
We are obliged to bear all expenses necessary for the purpose of supplementary performance, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the delivery was taken to a location other than the place of performance, unless the shipment corresponds to the intended use.
We are entitled to have the defect remedied by third parties. Replaced parts become our property.
8.6. In the event of impossibility or failure of the supplementary performance, culpable or unreasonable delay or serious and final refusal of supplementary performance by us or unreasonable subsequent performance for the contractual partner, the contracting party is entitled to choose either to reduce the purchase price accordingly (reduction) or to withdraw from the contract (withdrawal).
8.7. If nothing else follows from no. 8.8. and no., 8.9. further claims of the contractual partner that are related to defects in our deliveries and services, regardless of the legal reason (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) are excluded; this applies in particular to claims arising from damage outside of the delivery items, e.g. B. to other items of the contractual partner, as well as for the claim for compensation for lost profit.
8.8. The above no. 8.7. regulated disclaimer does not apply:
8.8.1. For damages resulting from injury to life, limb or health, which 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 an essential contractual obligation or a “cardinal obligation” by us, our legal representatives or our vicarious agents; if 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 case of fraudulent concealment of a defect, when assuming a guarantee or assuring a property, if a defect covered by it triggers our liability;
8.8.5. for any other claim of the contractual partner for which we, our legal representatives or our vicarious agents are responsible for compensation for damage instead of performance; if 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; Unless there is an intentional breach of contract, liability for damages is limited to the foreseeable, typically occurring damage.
8.9. In the event of reimbursement of expenses, no. applies. 8.8. entsprechend. –
8.10. The statutory provisions on the burden of proof shall remain unaffected by the above provisions of Clause 8, in particular Clauses 8.7. to 8.9.
8.11. Recourse claims of the contractual partner against us according to § 478 German Civil Code (BGB) (recourse by the entrepreneur) only exist insofar as the contractual partner has not made any agreements with his customer that go beyond the statutory claims for defects. Otherwise, claims from manufacturer recourse remain unaffected.
9. Liability for secondary obligations
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 failure or incorrect execution of proposals and advice prior to the conclusion of the contract as well as other secondary contractual obligations (in particular instructions for the operation and maintenance of the delivery item), then apply to the exclusion of further claims of the contractual partner, the provisions of the preceding paragraph accordingly. 8.7. bis 8.10. entsprechend. –
10. Joint liability, withdrawal by the contractual partner
10.1. The following provisions apply to claims by the contractual partner outside of liability for material defects. Legal or contractual rights and claims to which we are entitled should neither be excluded nor limited.
10.2. For the liability for damages – subject to the separately regulated liability due to delay (clause 4.6.) and impossibility (clause 4.8.) – the regulations above clauses 8.7. and 8.8. apply accordingly. Any further liability for damages – regardless of the legal nature of the claim made – is excluded. This applies in particular to claims for damages in addition to performance and compensation instead of performance due to breaches of duty as well as tort claims for compensation for property damage in accordance with § 823 German Civil Code (BGB).
10.3. The limitation according to Clause 10.2 shall also apply insofar as 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 legal regulations on the burden of proof remain unaffected.
10.6. As far as the liability towards us is excluded or limited, this also applies with regard to the personal liability for damages of our employees, workers, 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. In the cases of clause 8.6. (failed subsequent performance etc.) and in the case of impossibility, however, the statutory requirements shall apply; the provisions of clauses 4.5.3., 4.5.4. and 4.7. above shall apply to the contractual partner’s right of withdrawal in the event of delay in our deliveries or services. In the event of a breach of duty, the contractual partner must state within a reasonable period at our request whether it will withdraw from the contract due to the breach of duty or whether it insists on delivery.
11. Rights to know-how and inventions
Secret, high-quality and progressive knowledge (know-how) as well as inventions and any related industrial property rights that we have or acquired during the execution of the contracts concluded with us are available – subject to a separate agreement or the use to which the contractual partner is entitled according to the meaning and purpose of the contractual relationship or use of the delivery items – solely to us.
12. Tools
12.1. Unless otherwise agreed, the tools developed by us for the production of the delivery items remain our property, even if the contractual partner contributes to them in terms of costs (or if they alone bear the costs for this in full).
12.2. If a tool has to be repaired or completely or partially replaced for the contractual partner due to natural wear and tear due to the manufacture of the delivery items, we can demand reimbursement of the costs required for this in accordance with the original cost sharing of the contractual partner for the tool.
12.3. If a change or a replacement of the tool is necessary due to changed requirements of the contractual partner for the delivery items to be manufactured, the contractual partner shall bear the costs incurred.
13. Violation of Third Party Rights
We do not guarantee that the use, installation or resale of the delivery items will not violate any third party property rights; however, we assure that we are not aware of the existence of such third party property rights to the delivery items.
14. Statute of Limitations
14.1. The limitation period for claims and rights due to defects in deliveries or services – regardless of the legal reason – is one year; In the case of multi-shift operation, the aforementioned limitation period is reduced to six months. However, this shall not apply in the cases of §§ 438 para. 1 no. 1, 438 para. 1 no. 2, 479 para. 1 as well as 634 a) para. 1 no. 2 BGB; in this respect a limitation period of three years shall apply.
14.2. The limitation periods according to no. 14.1. also apply to all claims for damages against us that are related to 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. 14.1. sentence 1.
14.3. The limitation periods according to no. 14.1. and no., 14.2. do not apply
– in the case of intent;
– if we have fraudulently concealed the defect or have assumed a guarantee for the quality of the deliveries or services; in the event of fraudulent intent, the statutory limitation periods which would apply in the absence of fraudulent intent shall apply instead of the periods specified in Section 14.1. to the exclusion of the extension of the period in the event of fraudulent intent pursuant to Sections 438 (3) or 634 a (3) of the German Civil Code; –
– for claims for damages in cases of injury to life, limb, health or freedom;
– for 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 legal limitation periods apply.
14.4. Unless expressly stipulated otherwise, the statutory provisions on the start of the statute of limitations, the suspension of the expiry, the suspension and the restart of deadlines remain unaffected.
14.5. The claims for a reduction in price and the exercise of a right of withdrawal are excluded if the claim for supplementary performance is time-barred. In this case, however, the contractual partner can refuse to pay the remuneration insofar as it would be entitled to do so due to the withdrawal or the reduction in price.
15. Assignment of claims 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.
16. Contractual Penalty
All rights (in particular property rights and copyrights or copyright exploitation rights as well as industrial property rights) to the contractual documents provided to the contractual partner as part of our business relationship (in particular drafts, drawings, brochures, catalogs, illustrations, calculations, etc.) as well as samples, models and prototypes are exclusively reserved to us – unless expressly agreed otherwise. The contractual partner may only use and utilize the aforementioned documents, samples, models and prototypes within the framework of the contracts concluded with us and only with our consent. They are to be kept secret, unless they were already known to the contractual partner or generally accessible at the time of receipt or later became apparent without any action or responsibility on the part of the contractual partner; In particular, they may only be made accessible to third parties with our prior written consent. With the help of the above-mentioned documents, samples, models and prototypes, our delivery items may not be imitated or reproduced in any other way, nor be such imitated or reproduced products sold or used in any other way.
The contractual partner undertakes to pay us a contractual penalty of € 5,000.00 for each violation of the aforementioned obligations, unless he can prove that he was not at fault. We reserve the right to claim additional damages.
17. Prototypes
If the delivery of a prototype has been agreed, it is a prototype and not an end product that is intended and intended for use by end customers. The production of a prototype also serves to fathom the behavior of a workpiece (depending on the design and material). A defect is only present if the precisely agreed specifications are not adhered to when the workpiece is created.
18. Place of performance, place of jurisdiction, applicable law, intra-Community acquisition, severability clause
18.1. Unless otherwise agreed, the place of performance is exclusively our place of business.
18.2. If the contractual partner is a merchant within the meaning of the German Commercial Code (GHB), 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 – also for bills of exchange and check items – is our place of business or, at our option, the registered office of the contract partner. The above agreement on the place of jurisdiction also applies to contractual partners domiciled abroad.
18.3. For all rights and obligations from and in connection with the contractual relationship, the law of the Federal Republic of Germany applies exclusively and regardless of conflict of law regulations, excluding the UN Sales Convention (CISG: United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980).
18.4. 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 ineffective, this shall not affect the effectiveness of all other provisions or agreements.
18.5. Contractual partners from EU member states are obliged to compensate us for any damage that may arise in the case of intra-Community acquisitions
– due to tax offenses by the contractual partner himself or
– due to false or omitted information from the contractual partner about his or her relevant tax situation.
II. Conditions for problem solving
Consulting, planning and organizational services for the implementation of problem solutions are only assumed by us if they are expressly specified in the contracts concluded with us.
Such services are provided – subject to a separate contractual agreement – only against remuneration.
We generally conclude the relevant contracts on the basis of service contract law; we owe pure services accordingly and are liable for their correctness and suitability, but not for the occurrence of a certain service success.
The GENERAL TERMS AND CONDITIONS in accordance with I. above apply to the aforementioned services only if, as an exception, we assume the obligation to achieve success in terms of the law on work and services on the basis of an express agreement.