Terms and conditions

§ 1 Scope, Form

1. These General Terms and Conditions (GTC) apply to all our business relationships with our customers (“Buyers”). The GTC apply only if the Buyer 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 (“Goods”), regardless of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 BGB), as well as to the distribution of software. Unless otherwise agreed, the GTC, in the version valid at the time of the Buyer’s order or, in any event, in the version last communicated to the Buyer in text form, also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.
3. Our GTC apply exclusively. Deviating, conflicting, or supplementary General Terms and Conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This consent requirement applies in any case, for example, even if the Buyer refers to its GTC in the order and we do not expressly object to this.
4. Individual agreements (e.g., framework supply contracts, quality assurance agreements) and information in our order confirmation take precedence over the GTC.
5. Legally relevant declarations and notifications of the Buyer relating to the contract (e.g., setting deadlines, notification of defects, withdrawal, or reduction) must be made in writing. Written form within the meaning of these GTC includes written and text form (e.g., letter, email, fax). Statutory form requirements and further evidence, especially in cases of doubt about the legitimacy of the declarant, remain unaffected.
6. References to the applicability of statutory provisions are for clarification purposes only. Therefore, statutory provisions apply even without such clarification, unless they are directly amended or expressly excluded in these GTC.

§ 2 Contract Conclusion

1. Our offers are subject to change and non-binding. This also applies if we have provided the Buyer with documents such as catalogs, technical documentation (e.g., drawings, plans, calculations, references to DIN standards), or other product descriptions – including in electronic form – to which we reserve ownership and copyrights. The documents attached to an offer must be returned to us if the order is not placed with us.
2. The Buyer’s order of the Goods is deemed a binding contractual offer. Unless otherwise specified in the order, we are entitled to accept this contractual offer within 4 weeks of its receipt by us.
3. For services, deadlines and price quotations are deemed non-binding and merely as indicative deadlines or indicative prices.
4. Cost estimates are non-binding unless otherwise agreed in writing.
5. Acceptance can be declared either in writing (e.g., by order confirmation) or by delivery of the Goods to the Buyer.

§ 3 Delivery Period and Delay in Delivery

1. The delivery period is agreed individually or specified by us when accepting the order.
2. If we are unable to meet binding delivery deadlines for reasons beyond our control (non-availability of performance), we will inform the Buyer of this without delay and at the same time communicate the expected new delivery deadline. If the performance is also not available within the new delivery deadline, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already provided by the Buyer. Non-availability of performance exists, for example, in the case of untimely delivery by our supplier, if we have concluded a congruent hedging transaction, in the case of other disruptions in the supply chain, such as due to force majeure, or if we are not obliged to procure in individual cases.
3. The occurrence of our delay in delivery is determined by the statutory provisions. In any case, however, a reminder from the Buyer is required. If we are in delay of delivery, the Buyer may demand a lump-sum compensation for its delay damage. The lump-sum compensation amounts to 0.5% of the net price (delivery value) for each completed calendar week of delay, but not more than 5% of the delivery value of the Goods delivered late. We reserve the right to prove that the Buyer has incurred no damage or only significantly less damage than the above lump sum.
4. The Buyer’s rights according to § 8 of these GTC and our statutory rights, especially in the case of an exclusion of the obligation to perform (e.g., due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.

§ 4 Delivery, Transfer of Risk, Acceptance, Delay in Acceptance

1. Delivery is ex warehouse, which is also the place of performance for delivery and any subsequent performance. At the Buyer’s request and expense, the Goods will be shipped to another destination (sale involving the dispatch of goods). In the case of a sale involving the dispatch of goods, transport insurance is always taken out at the customer’s expense. Unless otherwise agreed, we are entitled to determine the type of shipment (especially transport company, shipping route, packaging) ourselves.
2. The risk of accidental loss and accidental deterioration of the Goods passes to the Buyer at the latest upon handover. In the case of a sale involving the dispatch of goods, however, the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay already passes upon delivery of the Goods to the forwarding agent, the carrier, or the person or institution otherwise designated to carry out the shipment. If acceptance has been agreed, this is decisive for the transfer of risk. Otherwise, the statutory provisions of the contract for work and services apply accordingly to an agreed acceptance. Handover or acceptance is equivalent if the Buyer is in default of acceptance.
3. If the Buyer is in default of acceptance, fails to cooperate, or if our delivery is delayed for other reasons for which the Buyer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g., storage costs).
4. The proof of higher damage and our statutory claims (especially compensation for additional expenses, reasonable compensation, termination) remain unaffected; however, the lump sum is to be credited against further monetary claims. The Buyer is permitted to prove that we have incurred no damage at all or only significantly less damage than the above lump sum.

§ 5 Prices and Payment Conditions

1. Unless otherwise agreed in individual cases, our prices valid at the time of the conclusion of the contract apply, ex warehouse, plus statutory value-added tax.
2. In the case of a sale involving the dispatch of goods (§ 4 para. 1), the Buyer bears the transport costs from the warehouse and the costs of transport insurance. The Buyer bears any customs duties, fees, taxes, and other public charges.
3. The purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the Goods. However, we are entitled, even within the framework of an ongoing business relationship, to carry out a delivery in whole or in part only against advance payment. We will declare a corresponding reservation at the latest with the order confirmation.
4. Upon expiry of the above payment deadline, the Buyer is in default. The purchase price is to be paid with interest at the applicable statutory default interest rate during the default period. We reserve the right to assert further default damage. Our claim to the commercial maturity interest (§ 353 HGB) remains unaffected vis-à-vis merchants.
5. The Buyer is only entitled to set-off or retention rights to the extent that its claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer’s counter-rights, in particular according to § 7 para. 6 sentence 2 of these GTC, remain unaffected.
6. If it becomes apparent after the conclusion of the contract (e.g., by application to open insolvency proceedings) that our claim to the purchase price is endangered by the Buyer’s lack of ability to perform, we are entitled to refuse performance and – if necessary after setting a deadline – to withdraw from the contract according to the statutory provisions (§ 321 BGB). In the case of contracts for the production of non-fungible goods (individual productions), we can declare the withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.

§ 6 Retention of Title

1. We reserve ownership of the sold Goods until full payment of all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
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 Buyer must inform us immediately in writing if an application to open insolvency proceedings is filed or if third parties access (e.g., seizures) the Goods belonging to us.
3. In the event of the Buyer’s breach of contract, in particular in the event of non-payment of the due purchase price, we are entitled, according to the statutory provisions, to withdraw from the contract or/and to demand the return of the Goods on the basis of the retention of title. The demand for return does not at the same time contain the declaration of withdrawal; rather, we are entitled to demand only the return of the Goods and reserve the withdrawal. If the Buyer does not pay the due purchase price, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.
4. The Buyer is authorized to resell and/or process the Goods subject to retention of title in the ordinary course of business until revocation in accordance with (c) below. In this case, the following provisions also apply.

1. ) The retention of title extends to the products resulting from the processing, mixing, or combining of our Goods to their full value, whereby we are considered the manufacturer. If the ownership rights of third parties remain in the case of processing, mixing, or combining with goods of third parties, we acquire co-ownership in the ratio of the invoice values of the processed, mixed, or combined goods. Otherwise, the same applies to the resulting product as to the Goods delivered under retention of title.
2. ) The Buyer hereby assigns to us as security the claims against third parties arising from the resale of the Goods or the product, either in full or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The Buyer’s obligations mentioned in paragraph 2 also apply with regard to the assigned claims.
3. ) The Buyer remains authorized to collect the claim alongside us. We undertake not to collect the claim as long as the Buyer meets its payment obligations towards us, there is no defect in its ability to perform, and we do not assert the retention of title by exercising a right according to paragraph 3. If this is the case, however, we can demand that the Buyer informs us of the assigned claims and their debtors, provides all information required for collection, hands over the associated documents, and notifies the debtors (third parties) of the assignment. In this case, we are also entitled to revoke the Buyer’s authorization to further sell and process the Goods subject to retention of title.
4. ) If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the Buyer’s request.

§ 7 Buyer’s Claims for Defects

1. The statutory provisions apply to the Buyer’s rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions), unless otherwise specified below. In all cases, the statutory provisions on the sale of consumer goods (§§ 474 ff. BGB) and the Buyer’s rights arising from separately issued guarantees, in particular from the manufacturer, remain unaffected.
2. The basis of our liability for defects is primarily the agreement made on the quality and the intended use of the Goods (including accessories and instructions). In this sense, all product descriptions and manufacturer’s information that are the subject of the individual contract or that were publicly announced by us (in particular in catalogs or on our website) at the time of the conclusion of the contract are considered quality agreements. If the quality has not been agreed, the statutory provisions apply to assess whether or not a defect exists (§ 434 para. 3 BGB). Public statements by the manufacturer or on its behalf, especially in advertising or on the label of the Goods, take precedence over statements by other third parties.
3. For goods with digital elements or other digital content, we only owe the provision and, if applicable, an update of the digital content if this has been expressly agreed. We assume no liability for public statements by the manufacturer and other third parties in this respect.
4. We are generally not liable for defects that the Buyer knows or grossly negligently does not know at the time of the conclusion of the contract (§ 442 BGB). Furthermore, the Buyer’s claims for defects require that it has complied with its statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect appears during delivery, inspection, or at any later time, we must be notified of this immediately in writing. In any case, obvious defects must be reported in writing within 5 working days of delivery, and defects not recognizable during inspection within the same period after discovery, stating the delivery or invoice number. If the Buyer fails to properly inspect and/or give notice of defects, our liability for the defect not reported, not reported in time, or not reported properly is excluded in accordance with the statutory provisions. In the case of goods intended for installation, attachment, or installation, this also applies if the defect only became apparent after the corresponding processing due to a breach of one of these obligations; in this case, the Buyer has no claims for compensation for corresponding costs (“removal and installation costs”).
5. No warranty is given for used devices. If we have been commissioned to repair an item, a warranty is only given for work actually carried out.
6. If the delivered item is defective, we can first choose whether we provide subsequent performance by remedying the defect (repair) or by delivering a defect-free item (replacement delivery). If the type of subsequent performance chosen by us is unreasonable for the Buyer in individual cases, it can reject it. Our right to refuse subsequent performance under the statutory conditions remains unaffected.
7. We are entitled to make the owed subsequent performance dependent on the Buyer paying the due purchase price. However, the Buyer is entitled to withhold a portion of the purchase price that is reasonable in relation to the defect.
8. The Buyer must give us the time and opportunity required for the owed subsequent performance, in particular to hand over the defective Goods for inspection purposes. In the case of replacement delivery, the Buyer must return the defective item to us at our request in accordance with the statutory provisions; however, the Buyer has no right to return the item. Subsequent performance does not include the removal, disassembly, or deinstallation of the defective item or the installation, attachment, or installation of a defect-free item if we were not originally obliged to provide these services; the Buyer’s claims for compensation for corresponding costs (“removal and installation costs”) remain unaffected.
9. We bear or reimburse the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labor, and material costs as well as, if applicable, removal and installation costs, in accordance with the statutory provisions and these GTC, if a defect actually exists. Otherwise, we can demand that the Buyer reimburse the costs incurred as a result of the unjustified request for rectification of defects if the Buyer knew or should have recognized that there was actually no defect.
10. In urgent cases, e.g., in the event of a risk to operational safety or to prevent disproportionate damage, the Buyer has the right to remedy the defect itself and to demand compensation from us for the objectively necessary expenses for this. We must be notified of such self-remedy immediately, if possible in advance. The right to self-remedy does not exist if we would be entitled to refuse corresponding subsequent performance in accordance with the statutory provisions.
11. If a reasonable deadline to be set by the Buyer for subsequent performance has expired unsuccessfully or is dispensable in accordance with the statutory provisions, the Buyer can withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions. However, there is no right of withdrawal in the event of an insignificant defect.
12. The Buyer’s claims for reimbursement of expenses in accordance with § 445a para. 1 BGB are excluded, unless the last contract in the supply chain is a consumer goods purchase (§§ 478, 474 BGB) or a consumer contract for the provision of digital products (§§ 445c sentence 2, 327 para. 5, 327u BGB). The Buyer’s claims for damages or reimbursement of futile expenses (§ 284 BGB) also exist in the event of defects in the Goods only in accordance with §§ 8 and 9 below.
13. Any liability is excluded for defects caused by improper use, modification of the Goods, or the installation of incompatible parts. Likewise, liability for wear parts is excluded. Furthermore, any warranty is excluded if the serial number, type designation, or similar markings are removed or made illegible. In addition, we assume no warranty if the customer has given us incorrect information, e.g., about technical data or the intended use of the delivered Goods.
14. According to the current state of the art, it is not possible to create software that is absolutely error-free. We therefore assume no liability for the fact that the programs provided by us are free of errors or meet the customer’s requirements, even if they are created with the greatest possible care. The suitability of the programs for a specific purpose is not promised, insofar as they are standard programs.

§ 8 Other Liability

1. Unless otherwise specified in these GTC, including the following provisions, we are liable for breaches of contractual and non-contractual obligations in accordance with the statutory provisions.
2. We are liable for damages – regardless of the legal basis – within the scope of fault-based liability in the event of intent and gross negligence. In the case of simple negligence, we are liable, subject to statutory limitations of liability (e.g., care in one’s own affairs; minor breach of duty), only

1. ) for damages resulting from injury to life, limb, or health,
2. ) for damages resulting from the breach of a material contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.

3. The limitations of liability resulting from paragraph 2 also apply to third parties and in the event of breaches of duty by persons (also in their favor) whose fault we are responsible for under statutory provisions. They do not apply if a defect was fraudulently concealed or a guarantee for the quality of the Goods was assumed and for the Buyer’s claims under the Product Liability Act.
4. Due to a breach of duty that does not consist of a defect, the Buyer can only withdraw or terminate if we are responsible for the breach of duty. A free right of termination for the Buyer (in particular according to §§ 650, 648 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.

§ 9 Statute of Limitations

1. Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the limitation period begins with acceptance.
2. If the Goods are a building or an item that has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period is 5 years from delivery in accordance with the statutory provisions (§ 438 para. 1 no. 2 BGB). Other statutory special provisions on the statute of limitations also remain unaffected (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB).
3. The aforementioned limitation periods of the law of sale also apply to the Buyer’s contractual and non-contractual claims for damages that are based on a defect in the Goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. The Buyer’s claims for damages in accordance with § 8 para. 2 sentence 1 and sentence 2 (a) as well as under the Product Liability Act expire exclusively in accordance with the statutory limitation periods.

§ 10 Third-Party Software

1. By opening the sealed data carrier packaging, regardless of how and where, the customer acknowledges the manufacturer’s software license terms. Subsequent return or exchange of the software is excluded after opening the sealed data carrier packaging. The right to return demonstrably defective products within the scope of the manufacturer’s guarantee and the statutory provisions remains unaffected.
2. The performance descriptions of the software programs are specifications and performance descriptions by the manufacturers and authors and not a warranty assurance by us.
3. The Buyer bears sole responsibility for the selection of the programs with regard to hardware compatibility and the specifications requested by it, unless advice from us to this effect is an express part of the contract.
4. The parties assume that the programs to be delivered are subject to the manufacturer’s copyright. The manufacturer’s terms therefore apply to their transfer.

§ 11 Software Development

1. Our scope of services also includes individual software solutions. Details of the development are to be agreed in writing in the form of a specification sheet between the parties. The specification sheet or an equivalent document as well as any written additions to it automatically become part of the contract.
2. The customer receives a simple, unrestricted, and non-transferable right of use for the software developed by us. This means that the software developed by us may not be used simultaneously in different locations and on different devices. Copies may only be made for backup purposes and may not be passed on to third parties. A multiple right of use must be agreed separately in writing.
3. The customer is entitled to transfer/sell the contract software as a whole once to a third party. If the customer makes use of its right to transfer the contract software in whole or in part, it must impose its contractual obligations regarding the content and scope of the rights of use on the third party. Liability on our part towards third parties in connection with a transfer is excluded. In the event of a transfer, the customer will hand over or delete all copies of the contract software made by it to the buyer or acquirer and inform us immediately in writing about the transfer. Further distribution or sublicensing requires our consent and is to be remunerated accordingly.
4. If the contract software or parts of the contract software are compiled, decompilation of the contract software is only permitted if the requirements and conditions specified in § 69e para. 1 UrhG are met. However, the information obtained may not be used or passed on contrary to the provisions of § 69e para. 2 UrhG.
5. The copyright to source codes, development documentation, etc. always remains fully with us. Copyright and other proprietary notices within the contract software may neither be removed nor changed. They must be transferred with every copy.

§ 12 Data Protection

1. The contracting parties undertake to treat confidentially all objects (e.g., software, documents, information) that they receive or become aware of from the other contracting party before or during the execution of the contract, which are legally protected or contain business or trade secrets or are designated as confidential, even after the end of the contract, unless they are publicly known without violating the obligation of confidentiality. The contracting parties store and secure these objects in such a way that access by third parties is excluded.
2. The customer only makes the contractual objects available to employees and other third parties who need access to perform their official duties. It instructs these persons about the confidentiality of the objects.
3. We process the customer’s data required for the execution of the business transaction in compliance with data protection regulations. We may name the customer as a reference customer after successful completion of the services.
4. In the event that we are commissioned to develop software, we undertake to use all data provided to us by our customer for test purposes only for this development and to delete it irrevocably after completion of the development.

§ 13 Choice of Law and Place of Jurisdiction

1. The law of the Federal Republic of Germany applies to these GTC and the contractual relationship between us and the Buyer, excluding international uniform law, in particular the UN Sales Convention.
2. If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special fund under public law, our place of business in Lübeck is the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the Buyer is an entrepreneur within the meaning of § 14 BGB. However, we are also entitled in all cases to take legal action at the place of performance of the delivery obligation in accordance with these GTC or a priority individual agreement or at the Buyer’s general place of jurisdiction. Priority statutory provisions, in particular on exclusive jurisdictions, remain unaffected.

§ 14 Final Provisions

1. Changes and additions to the contract must be made in writing to be effective. The written form requirement can only be waived in writing. Compliance with the written form is a prerequisite for the effectiveness of the declaration. Transmission in text form, in particular by fax or email, is sufficient to comply with the written form.
2. Should individual provisions of this contract be or become wholly or partially ineffective, the effectiveness of the remaining provisions will not be affected. The parties already agree in this case that the invalid provision will be replaced by an effective provision that comes as close as possible to the economic purpose of the invalid provision. The same applies to any gaps in the agreement.