General terms and conditions
General Terms and Conditions of Technik Center Schraubsysteme GmbH
§ 1 General, scope of application
(1) These General Terms and Conditions (GTC) apply to all our business relations with our customers. The GTC only apply if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The GTC apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also referred to as: “goods”), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 651 BGB) as well as to contracts for installation work. The GTC in the version valid at the time of the customer’s order shall also apply to similar future contracts for the sale and/or delivery of movable goods as well as for assembly work with the same customer without us having to refer to them again in each individual case.
(3) Our General Terms and Conditions shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the customer or assembly without reservation in the knowledge of the customer’s GTC.
(4) Individual agreements made with the customer in individual cases (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
(5) Legally relevant declarations and notifications by the customer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made to us in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in the case of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
(6) References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
§ 2 Conclusion of contract
(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the customer with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve property rights and copyrights.
(2) The order of the goods by the customer shall be deemed to be a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 4 weeks of its receipt by us.
(3) Acceptance may be declared either in writing or in text form (e.g. by order confirmation) or by delivery of the goods to the customer.
(4) If the goods are manufactured according to the customer’s specifications and/or requirements, we are not obliged to check the correctness of the customer’s specifications and/or requirements (in particular parameters, pre-processing dimensions and specifications) for the manufacture or execution of the processing of the goods; the customer is solely responsible for this information. This also applies in particular to liability for any infringement of industrial property rights.
(5) In the event that special tools are required to carry out the customer’s order, we shall remain the owner of the tools even if the customer contributes to the tool costs, irrespective of whether we manufacture these tools ourselves or have them manufactured by third parties. A (pro rata) transfer of ownership to the customer shall only take place if expressly agreed in writing.
§ 3 Delivery and assembly periods
(1) Delivery, assembly and other deadlines are only binding if they have been individually agreed or expressly stated or confirmed by us. If this is not the case, the delivery or assembly period shall be 10 weeks from conclusion of the contract.
(2) If we are unable to meet binding deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the customer of this without delay and at the same time inform him of the expected new delivery or, if applicable, assembly deadline. If the service is also not available within the new period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the customer. A case of non-availability of the performance in this sense shall be deemed to be, in particular, the failure of our supplier to deliver to us on time if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
(3) The occurrence of our default shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the customer is required. In any case, delivery or assembly shall be subject to the timely and proper fulfilment of the customer’s obligations. We reserve the right to plead non-performance of the contract. If we are in default, the customer may demand lump-sum compensation for the damage caused by the default. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each full calendar week of the delay, but in total not more than 5% of the delivery value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay. We reserve the right to prove that the customer has suffered no damage at all or only significantly less damage than the aforementioned lump sum.
(4) The rights of the customer pursuant to § 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§ 4 Changes in performance
(1) Requests by the customer for changes to the goods sold, to a service to be provided by us, etc. pursuant to § 2 (4) shall be documented in a change request document describing the requirements and the scope of the change and sent to us.
(2) We shall examine the change request and inform you within 10 working days whether the change request is feasible or not. In the event of feasibility, we shall submit a realisation offer within a further 10 working days, stating the realisation period, planned dates and effects on the remuneration.
(3) The customer shall accept or reject the realisation offer within 5 working days. Agreed changes in performance shall be documented and signed in a binding manner.
(4) The services affected by the change request may be interrupted until the realisation offer is accepted or rejected. If the realisation offer is not accepted within the time limit, the work shall be continued on the basis of the original contract.
(5) Should delays in deadlines occur due to a request for change as described above, for which we are not responsible, or also due to the fact that the customer fails to cooperate and provide support as agreed or does not do so in due time or the performance is interrupted at the request of the customer, deadlines originally agreed must be redefined by the parties by mutual agreement. The resulting postponements of deadlines shall not result in default on our part. In addition, we shall be entitled to charge for any waiting/downtime incurred and/or any additional expenditure.
§ 5 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
(1) Delivery shall be made ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the customer’s request and expense, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the customer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. Handover or acceptance shall be deemed equivalent if the customer is in default of acceptance.
(3) If the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we shall charge a lump-sum compensation of EUR 100 per calendar day, starting with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for dispatch. The proof of higher damages and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The customer shall be entitled to prove that we have incurred no damage at all or only significantly less damage than the aforementioned lump sum.
§ 6 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our prices current at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value added tax. If assembly has been agreed, this shall be invoiced on a time basis, unless a lump sum price has been expressly agreed, plus statutory turnover tax.
(2) In the case of sale by delivery to a place other than the place of performance (§ 4 para. 1), the customer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the customer. Any customs duties, fees, taxes and other public charges shall be borne by the customer.
(3) Our payment claims against the customer are due and payable within 14 days from the date of invoice and delivery or acceptance of the goods. However, we are entitled at any time, also within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
(4) Upon expiry of the aforementioned payment deadline, the customer shall be in default. During the period of default, interest shall be charged on the price at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected.
(5) The customer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the customer’s counter rights shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these GTC.
(6) If, after conclusion of the contract, it becomes apparent that our claim to the price is jeopardised by the customer’s inability to pay (e.g. by an application for the opening of insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.
§ 7 Retention of title
(1) We retain title to the goods sold until all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The customer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the goods belonging to us.
(3) In the event of conduct by the customer in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand surrender of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
(4) Until revoked in accordance with (c) below, the customer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title extends to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we are deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The customer hereby assigns to us by way of security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the customer stated in paragraph 2 shall also apply in respect of the assigned claims.
(c) The customer remains authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the customer meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right pursuant to para. 3. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we are entitled to revoke the customer’s authorisation to further sell and process the goods subject to retention of title.
(d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the customer’s request.
§ 8 Claims for defects of the customer
(1) The statutory provisions shall apply to the customer’s rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier recourse pursuant to §§ 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the customer or another entrepreneur, e.g. by installation in another product.
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. Product descriptions, drawings, weights and dimensions shall only be deemed to be an agreement on the quality of the goods if they are expressly referred to in our acceptance of the offer.
(3) Insofar as the quality has not been agreed, it is to be assessed in accordance with the statutory regulation whether a defect exists or not (§ 434 Para. 1 S. 2 and 3 BGB). However, we do not accept any liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
(4) The customer’s claims for defects presuppose that he has fulfilled his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent upon delivery, inspection or later, we must be notified of this in writing without delay. In any case, obvious defects must be notified to us in writing within two weeks of delivery and defects which are not recognisable during the inspection must be notified to us within the same period of time after discovery. If the customer fails to carry out the proper inspection and/or give notice of defects, our liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions.
(5) In the event of assembly, the customer shall notify us immediately in writing of any defects discovered in the assembly, stating and sufficiently describing the nature and extent of the defect.
(6) If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement). Our right to refuse subsequent performance under the statutory conditions remains unaffected.
(7) We are entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer is entitled to retain a reasonable part of the purchase price in relation to the defect. Reasonable shall be deemed to be twice the amount of the costs of remedying the defect in accordance with § 641 BGB, unless one party proves significantly lower or higher costs of remedying the defect.
(8) The customer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the customer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor its re-installation if we were not originally obliged to install it.
(9) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if a defect is actually present. However, if a request by the customer to remedy a defect turns out to be unjustified, we may demand reimbursement from the customer of the costs incurred as a result (in particular inspection and transport costs), unless the lack of defectiveness was not recognisable to the customer.
(10) In urgent cases, e.g. in the event of a risk to operational safety or to prevent disproportionate damage, the customer shall have the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be informed immediately of such self-execution, if possible in advance. The right of self-performance does not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
(11) If the subsequent performance has failed or if a reasonable deadline to be set by the customer for the subsequent performance has expired unsuccessfully or is dispensable according to the statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
(12) Claims of the customer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with § 8 and are otherwise excluded.
§ 9 Other liability
(1) Insofar as nothing to the contrary arises from these General Terms and Conditions including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) We shall be liable for damages – irrespective of the legal grounds – within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we shall be liable, subject to a milder standard of liability in accordance with statutory provisions (e.g. for diligence in our own affairs) only
a) for damages resulting from injury to life, body or health,
b) for damages arising from the breach of a material contractual obligation (obligation the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from para. 2 shall also apply in the event of breaches of duty by or in favour of persons for whose fault we are responsible in accordance with statutory provisions. They do not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the customer under the Product Liability Act.
(4) The customer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the customer (in particular according to §§ 651, 649 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 10 Limitation
(1) The limitation period for claims arising from material defects and defects of title is one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) The special statutory provisions on limitation (in particular § 438 para. 1 no. 2 BGB, § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB, §§ 634a para. 1 no. 2, para. 3 BGB) shall remain unaffected.
(3) The above limitation periods of the law on sales and contracts for work and services shall also apply to contractual and non-contractual claims for damages of the customer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. However, claims for damages by the customer pursuant to § 9 para. 2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
§ 11 Choice of law and place of jurisdiction
(1) These GTC and the contractual relationship between us and the customer shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the customer 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 exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Tuningen. The same shall apply if the customer is an entrepreneur as defined in § 14 BGB. § 14 BGB (German Civil Code). However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTC or a prior individual agreement or at the general place of jurisdiction of the customer. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.