1. scope of application
1.1 Our General Terms and Conditions shall apply exclusively. Insofar as they do not contain any provisions, the law shall apply. We shall not recognize any terms and conditions of the contractual partner that conflict with or deviate from our General Terms and Conditions of Business or from the law to our disadvantage, unless we have expressly agreed to their validity in writing.
1.2 Our General Terms and Conditions shall also apply to all future transactions with the contractual partner.
1.3 Our General Terms and Conditions shall also apply if they are not separately communicated to the Buyer in the event of subsequent conclusion of a contract.
1.4 Our General Terms and Conditions shall only apply to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).
2 Offers and cost estimates
Our offers and cost estimates are – unless expressly designated as firm – subject to change and non-binding.
We reserve all rights to all offer and contract documents, in particular drafts, drawings, illustrations, etc., as well as samples, models and prototypes, insofar as they are not granted to the contractual partner in accordance with the meaning and purpose of the contract or on the basis of an express agreement. Offer documents as well as samples, models and prototypes are to be returned to us immediately upon our request if the order is not placed with us. The contractual partner cannot assert a right of retention in this respect.
3. prices, terms of payment, reservation of right to subsequent performance
3.1 We reserve the right to increase our prices appropriately if, after conclusion of the contract, cost increases occur for which we are not responsible, in particular due to collective wage agreements or changes in the price of materials. We shall provide evidence of such increases to the contractual partner upon request.
3.2 Unless otherwise agreed, our prices are ex works and do not include postage, shipping, freight, packaging or insurance. Value added tax shall be invoiced additionally at the legally prescribed rate.
3.3 Subject to separate agreements, precious metals are due for payment immediately net, deliveries of goods are due for payment within 14 days net. The deduction of discounts requires a special written agreement. The contracting party shall be in default without any further declaration on our part ten days after the due date if it has not paid. For the consequences of default in payment, the statutory provisions shall otherwise apply.
3.4 We shall be entitled to demand reasonable payments on account plus the statutory VAT amount due thereon.
3.5 In case of non-observance of payment agreements or in case of the occurrence of circumstances which reduce the creditworthiness of the contractual partner, we shall be entitled to deliver outstanding deliveries only against advance payment. If we have not received payment in the amount of the outstanding amount or at least a reasonable down payment of at least 30% of the outstanding invoice amount even after a reasonable grace period for payment has expired, we reserve the right to withdraw from the contract.
3.6 Bills of exchange and checks are only accepted on account of payment, bills of exchange only with prior written agreement. The discount, expenses and costs associated with the collection of the bill of exchange and check amount shall be borne by the contractual partner and shall be due for payment immediately. Fulfilment shall only take effect once the cheques or bills of exchange have been honoured and we have been released from any liability.
3.7 The contracting party shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or acknowledged. The contractual partner shall only be entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.
4. delivery or performance time, delays in delivery or performance for which we are not responsible, delay in delivery or performance, impossibility, default in acceptance, breach of duties to cooperate.
4.1 The stated delivery or performance times shall only be fixed dates if they are expressly specified as such.
4.2 Compliance with delivery or performance obligations, in particular delivery dates, shall be subject to the following:
– the timely and proper fulfillment of any obligations to cooperate on the part 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.
We reserve the right to plead non-performance of the contract.
4.3 We shall not be responsible for delays in delivery or performance due to the following impediments to delivery and performance – unless a procurement risk or a guarantee has exceptionally been assumed with regard to compliance with the deadline or delivery date; the same shall apply accordingly if these impediments occur at our suppliers or their sub-suppliers:
Circumstances of force majeure as well as obstacles to delivery and performance,
– which occur after conclusion of the contract or which become known to us through no fault of our own only after conclusion of the contract and
– with regard to which we can prove that they could not have been foreseen and prevented by us even by exercising due diligence and that we are not responsible for taking over, taking precautions or averting such circumstances.
Under the aforementioned conditions – occurrence or becoming known through no fault of our own only after conclusion of the contract, unforeseeability and unavoidability proven by us – these include in particular:
4. delivery or performance time, delivery or justified industrial action (strike and lockouts); operational disruptions; shortage of raw materials; failure of operating and auxiliary materials. Claims for damages by the contractual partner are excluded in the event of delays in delivery and performance in the above cases. In the event of a final impediment to delivery and performance as defined above, each party to the contract shall be entitled to terminate the contract immediately by rescission in accordance with the statutory provisions.
In the event of a temporary impediment to delivery and performance as defined above, we shall be entitled to postpone deliveries and services for the duration of the impediment plus a reasonable start-up period.
4.4 We shall be liable for delays in delivery or performance for which we are responsible in accordance with the statutory provisions with the following limitation of liability in terms of amount:
Our liability shall be limited to the foreseeable, typically occurring damage, unless the delay in delivery or performance is due to an intentional or grossly negligent breach of contract for which we, our legal representatives or vicarious agents are responsible.
5 Transfer of risk, plea of uncertainty
5.1 If the law on the sale of goods applies to our deliveries, the risk of accidental loss or accidental deterioration shall pass to the contracting party as soon as the delivery has been handed over to the person or institution designated to collect or execute the delivery, but no later than when it leaves our premises.
5.2 If we are obligated to advance performance under a mutual contract, we may refuse the performance incumbent upon us if it becomes apparent after conclusion of the contract that our claim to counter-performance is jeopardized by the contracting party’s lack of ability to perform. We shall be entitled to set the contractual partner a reasonable deadline within which the contractual partner shall, at its discretion, effect counter-performance or provide security concurrently with our performance. After unsuccessful expiry of the deadline, we shall be entitled to withdraw from the contract. Insofar as we have already rendered our performance, we shall be entitled to declare any claims resulting therefrom which are not yet due, including claims for which bills of exchange or checks have been given, to be due with immediate effect. Instead, we shall also be entitled to withdraw from the contract. Furthermore, we shall have the right to prematurely call due claims arising from the same legal relationship if the contractual partner is in default of payment for more than 6 weeks with at least 25% of its total liabilities to us (main claims not subject to a defense). The same shall apply if we become aware that bills of exchange are protested or compulsory enforcement measures are initiated against the contractual partner or any other deterioration of assets occurs. We shall also be entitled to withdraw from the contract if the contractual partner has culpably provided incorrect or incomplete information about the facts justifying its creditworthiness.
6. retention of title
6.1 We reserve title to the delivery items (“reserved delivery”) until receipt of all payments arising from the business relationship with the contractual partner. The retention of title shall also extend to the acknowledged balance insofar as we book claims against the contractual partner to current account (current account retention). If, in order to effect the payments to be made to us for the reserved delivery, a liability by bill of exchange is established on our part, the reservation of title shall not expire before our liability by bill of exchange expires; if the check/bill of exchange procedure has been agreed with the contractual partner, the reservation shall also extend to the redemption by the contractual partner of the bill of exchange accepted by us and shall not expire when the check received is credited to our account.
6.2 The contracting party shall be entitled to resell the reserved delivery in the ordinary course of business; however, it hereby assigns to us all claims in the amount of the final invoice amount (including value added tax) of our claims accruing to it against its customers or third parties from the resale. If the contractual partner includes the claims from a resale of the reserved delivery in a current account relationship existing with his customer, the current account claim shall be assigned in the amount of the recognized balance; the same shall apply to the “causal” balance in the event of insolvency of the contractual partner. The contractual partner shall be authorized to collect the assigned claims even after their assignment. Our authority to collect the claims ourselves shall remain unaffected – subject to the provisions of insolvency law; however, we undertake not to collect the claims as long as the contractual partner does not violate its contractual obligations, in particular does not duly meet its payment obligations, is not in default of payment and no application for the opening of insolvency proceedings has been filed or there is no cessation of payments.
Transfer of ownership by way of security or pledging shall not be covered by the contractual partner’s right of disposal.
6.3 In the event that we cease to be obligated 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 take back the reserved delivery or to demand the assignment of the contractual partner’s claims for return against third parties. The taking back of the reserved goods by us shall constitute a withdrawal from the contract.
Subject to the provisions of insolvency law, we shall be entitled to make appropriate use of the reserved delivery taken back for the aforementioned reasons after prior warning and after setting a deadline; the proceeds of such use shall be set off against the liabilities of the contractual partner – less reasonable costs of use.
Under the conditions which entitle us to revoke the contracting party’s right to resell, we may also revoke the authorization to collect and demand that the contracting party inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and notify the debtors (third parties) of the assignment.
6.4 In the event of damage to or loss of the reserved delivery as well as change of ownership and change of residence, the contractual partner shall notify us immediately in writing. The same shall apply in the event of seizures or other interventions by third parties, so that we can bring an action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO, the contractual partner shall be liable for the loss incurred by us. If the release of the reserved delivery is achieved without a lawsuit, the costs incurred in this process can also be charged to the contractual partner, as well as the costs of the repossession of the seized reserved delivery.
6.5 The processing or transformation of the reserved delivery by the contractual partner shall always be carried out for us. If the reserved delivery is processed with other items not belonging to us, we shall 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.
In all other respects, the same shall apply to the item created by processing or transformation as to the reserved delivery. The contracting party shall be granted an expectant right to the item resulting from the processing or transformation corresponding to its expectant right to the conditional delivery.
6.6 If the delivery subject to retention of title is inseparably mixed or combined with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivery subject to retention of title (final invoice amount including VAT) to the values of the other mixed or combined items at the time of mixing or combining. If the mixing or combining is carried out in such a way that the contractual partner’s item is to be regarded as the main item, it shall be deemed agreed that the contractual partner shall transfer co-ownership to us on a pro rata basis. The contractual partner shall keep the sole ownership or the co-ownership for us.
6.7 In the event of resale of our conditional delivery after processing or transformation, the contracting party hereby assigns to us by way of security its claims for remuneration in the amount of the final invoice amount (including value added tax) of our claims.
If, as a result of the processing or transformation or the mixing or combination of the conditional delivery with other items not belonging to us, we have only acquired co-ownership in accordance with the aforementioned item 6.5. or 6.6., the contractual partner’s remuneration claim shall only be assigned to us in advance in the ratio of the final amount invoiced by us for the conditional delivery, including value added tax, to the final invoice amounts of the other items not belonging to us.
In all other respects, the aforementioned clauses 6.2. to 6.4. shall apply mutatis mutandis to the claims assigned in advance.
6.8 If the retention of title or the assignment is not effective under foreign law in whose area our reserved delivery is located, the security corresponding to the retention of title and the assignment in this legal area shall be deemed agreed.
If the cooperation of the contracting party is required for the creation of such rights, the contracting party shall be obliged, at our request, to take all measures necessary for the creation and maintenance of such rights.
6.9 The contractual partner shall be obliged to treat the reserved delivery with care and to maintain it at its own expense; in particular, the contractual partner shall be obliged to sufficiently insure the reserved delivery at its own expense against theft, robbery, burglary, fire and water damage for our benefit at replacement value. The contracting party hereby assigns to us all insurance claims resulting therefrom with respect to the reserved delivery. We accept the assignment.
Furthermore, we reserve the right to assert our claims for performance or damages.
6.10. The contracting party also assigns to us the claims to secure our claims against it which arise against a third party through the connection of the reserved delivery with a property.
6.11. We undertake to release the securities to which we are entitled at the request of the contractual partner to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released shall be incumbent upon us.
7. rights, contractual penalty
We shall be exclusively entitled to all rights (in particular property rights and copyrights and/or copyright exploitation rights as well as industrial property rights) to the contractual documents (in particular drafts, drawings, brochures, catalogs, illustrations, calculations, product descriptions, etc.) as well as samples, models and prototypes provided to the contractual partner within the scope of our business relationship, unless expressly agreed otherwise. The contractual partner may use and exploit the aforementioned documents, samples, models and prototypes only within the framework of the contracts concluded with us and only with our consent. They must be kept secret unless they were already known or generally accessible to the contractual partner at the time of receipt or later became apparent without the contractual partner’s action or responsibility; in particular, they may only be made accessible to third parties with our prior written consent. With the aid of the aforementioned documents, samples, models and prototypes, our delivery items may not be imitated or otherwise replicated, nor may products imitated or replicated in this way be distributed or exploited in any other way.
The contractual partner undertakes to pay us a contractual penalty of € 5,000.00 for each infringement of the aforementioned obligations, unless he can prove that he is not at fault. We reserve the right to claim further damages.
8. performance description, liability for defects
8.1 The characteristics listed in our performance descriptions comprehensively and conclusively define the characteristics of our deliveries and services. In case of doubt, the descriptions of our deliveries and services are the subject of agreements on quality and not of guarantees or warranties. Declarations on our part in connection with this contract shall, in case of doubt, not contain any guarantees or assurances in the sense of an intensification of liability or assumption of a special obligation to indemnify. In case of doubt, only express written declarations on our part with regard to the issuance of guarantees and assurances shall be authoritative.
8.2 No warranty shall be assumed for damage due to the following reasons: unsuitable or improper use or operation, faulty assembly by the contractual partner or third parties, natural wear and tear, faulty or negligent handling, unsuitable means, chemical, electrochemical or electrical influences (insofar as we are not responsible for them), improper modifications or repair work carried out by the contractual partner or third parties without our prior approval.
8.3 The contracting party shall have no claims based on defects in the event of only insignificant deviation from the agreed quality or only insignificant impairment of the usability of our deliveries or services.
8.4 The contracting party’s rights in respect of defects shall be subject to the condition that the contracting party has duly complied with its obligations to inspect the goods and to give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
8.5 Insofar as a defect exists, we shall be entitled, at our discretion, to subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. If one of the two or both types of this subsequent performance is impossible or disproportionate, we shall be entitled to refuse it.
We may also refuse subsequent performance as long as the contractual partner does not fulfill its payment obligations towards us to an extent that corresponds to the defect-free part of the service provided.
We shall be obliged to bear all expenses necessary for the purpose of subsequent 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 place other than the place of performance, unless the transfer corresponds to the intended use.
We shall also be entitled to have the defect rectified by third parties. Replaced parts shall become our property.
8.6 In the event of impossibility or failure of subsequent performance, culpable or unreasonable delay or serious and final refusal of subsequent performance by us or unreasonableness of subsequent performance for the contractual partner, the contractual partner shall be entitled, at its option, either to reduce the purchase price accordingly (reduction) or to withdraw from the contract (rescission).
8.7 Unless otherwise provided for in Clauses 8.8 and 8.9 below, any further claims of the contracting party in connection with defects in our deliveries and services, irrespective of their legal basis (in particular claims for damages due to defects and breaches of duty, tortious claims for compensation for property damage and claims for reimbursement of expenses), shall be excluded; this shall apply in particular to claims for damage outside the delivery items, e.g. to other property of the contracting party, and to claims for compensation for lost profits.
8.8 The exclusion of liability provided for in clause 8.7 above shall not apply:
8.8.1. for damages resulting from injury to life, body or health, which are based on a culpable breach of duty on our part, on the part of our legal representatives or on the part of our vicarious agents;
8.8.2. for mandatory liability under the Product Liability Act;
8.8.3. in the event of fraudulent concealment of a defect, in the event of the assumption of a guarantee or in the event of the assurance of a characteristic, if it is precisely a defect covered by this that triggers our liability;
8.8.4. in the event of culpable breach of a material contractual obligation or a “cardinal obligation” by us, our legal representatives or our vicarious agents; however, in the absence of intentional or grossly negligent breach of contract, liability for damages shall be limited to the foreseeable, typically occurring damage;
8.8.5. for any other claim of the contractual partner for compensation of damage instead of performance for which we, our legal representatives or our vicarious agents are responsible; however, insofar as there is no intentional or grossly negligent breach of contract, the liability for damages shall be 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, on the part of our legal representatives or on the part of our vicarious agents; insofar as there is no intentional breach of contract, the liability for damages shall, however, be limited to the foreseeable, typically occurring damage.
8.9 In the event of reimbursement of expenses, Section 8.8 shall apply accordingly.
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. In the event of damage caused by the transport company, the contractual partner undertakes to notify us and the transport company immediately after becoming aware of the damage. Likewise, the contracting party undertakes to keep all necessary documents, packaging materials and goods relating to the case of damage until instructed otherwise by us or the transport company.
8.12. If the health of humans, animals or the environment is in acute danger, the provision from 8.11. is released for removal for the part of the delivery from which an acute danger emanates. All other materials and documents are to be stored until further notice and kept ready for inspection.
9. rights to know-how and inventions
We alone shall be entitled to any secret, high-quality and advanced knowledge (know-how) as well as inventions and any industrial property rights in this respect which we possess or have acquired during the performance of the contracts concluded with us – subject to a separate agreement or the use or application of the delivery items to which the contractual partner is entitled in accordance with the meaning and purpose of the contractual relationship.
10 Violation of the rights of third parties
We do not warrant that the use, installation or resale of the delivery items does not infringe any third-party industrial property rights; however, we warrant that we are not aware of the existence of any such third-party industrial property rights to the delivery items.
The period of limitation for claims and rights due to defects in the deliveries or services – irrespective of the legal grounds – shall be one year. 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. The above limitation periods shall also apply to all claims for damages against us in connection with the defect.
12. assignment of claims by the contractual partner
Claims against us in respect of the deliveries or services to be provided by us may only be assigned with our prior written consent.
13. place of performance, place of jurisdiction, applicable law, intra-community acquisition, severability clause
13.1 Unless otherwise agreed, the place of performance shall be exclusively our place of business.
13.2 If the contractual partner is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the place of jurisdiction for all obligations arising from and in connection with the contractual relationship – including matters relating to bills of exchange and checks – shall be our registered office or, at our option, the registered office of the contractual partner. The above agreement on the place of jurisdiction shall also apply to contractual partners with their registered office abroad.
13.3 All rights and obligations arising from and in connection with the contractual relationship shall be governed exclusively and without regard to conflict of law provisions by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG: United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980).
13.4 Should a provision in these General Terms and Conditions or a provision within the scope of other agreements between us and the contractual partner be or become invalid, this shall not affect the validity of all other provisions or agreements.
13.5 In the case of intra-Community acquisitions, contractual partners from EC member states shall be obliged to compensate us for any damage that we may incur
– due to tax offences committed by the contractual partner itself or
– due to false information or failure to provide information by the contractual partner regarding his circumstances relevant for taxation.
14. data protection
14.1 We draw attention to the fact that we will electronically store and process supplier and quantity data for our own purposes in connection with the business relationship (§26 Federal Data Protection Act). The Purchaser’s consent to this shall be deemed to have been declared when the order is placed.
14.2 For the purpose of simple and fast processing we collect customer and supplier specific data which we use and pass on under reservation exclusively to involved contractual partners and only in the sense of the contractual partner. No data will be collected by us and passed on to uninvolved third parties.
14.3 For research and development purposes, customer-specific data from surveys and contract conclusions are collected. This data is used exclusively for further processing by Ador Global GmbH and will not be passed on to uninvolved third parties without the consent of the contractual partner.
The security and protection of your personal data is particularly important to us. We inform you in detail about the handling of these in our data protection declaration, which you can call up here.