§ 1 Scope of application and form
(1) These GTCS shall apply exclusively. Deviating, supplementary and/or conflicting terms and conditions shall not be applicable unless we have expressly agreed upon in writing.
(2) These GTCS shall apply in the version valid at the time of the purchaser’s order or in any case in the version last notified to him in text form as a framework agreement applicable for all similar transactions between the parties in the future. This shall also apply in the event that we carry out the delivery of goods in the knowledge of deviating, supplementary and/or conflicting terms and conditions.
(3) These GTCS apply only to entrepreneurs (§14 German Civil Code), legal entities under public law or special funds under public law within the meaning of §310 para. 1 German Civil Code.
(4) These GTCS apply in particular to contracts for the sale and/or delivery of movable goods (“goods”), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers.
(5) Individual agreements made with the purchase in individual cases (additional agreements, supplements & amendments) shall in any case prevail these GTCS. Subject to proof of the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
(6) Legally relevant declarations and notifications by the purchaser with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction, etc.) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in case of doubts about the legitimacy of the person making the declaration, remain unaffected.
(7) 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 GTCS.
§ 2 Conclusion of contract
(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the purchaser with catalogues, technical documentation (e.g. drawings, plans, computations, calculations, references to DIN standards, etc.), other product descriptions or documents – also in electronic form – to which we reserve property rights and copyrights.
(2) The ordering of the goods by the purchaser shall be deemed to be a non-binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within a period of two weeks after its receipt.
(3) Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the purchaser
§ 3 Delivery period and delay in delivery
(1) The delivery period shall be agreed upon individually or stated by us upon acceptance of the order.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the purchaser without delay and at the same time inform him of the expected new delivery deadline. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately refund any consideration already paid by the purchaser.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, a notice by the purchaser is required.
(4) The rights of the purchaser pursuant to § 8 of these GTCS 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 Delivery, Transfer of Risk, Delay of Acceptance
(1) Delivery shall be ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the request and expense of the purchaser 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) If the purchaser is in delay of acceptance, if he fails to cooperate or if our delivery is delayed for other reasons for which the purchaser is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). Our statutory claims shall remain unaffected.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory VAT.
(2) In case of a sale by delivery to a place other than the place of performance, the purchaser shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the purchaser, as well as any customs duties, fees, taxes and other public charges.
(3) 50% of the purchase price is to be paid by the purchaser to the seller as a deposit after receipt of the order confirmation. The remaining purchase price is due 10 working days before the agreed delivery date. However, we are entitled at any time, also within the framework of an ongoing business relationship, to set different terms of payment. We shall declare a corresponding reservation at the latest with the order confirmation.
(4) Upon expiry of the aforementioned payment deadline, the purchaser shall be in delay. During the period of delay, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial interest on arrears (§ 353 HGB) remains unaffected.
(5) The purchaser shall only be entitled to rights of set-off and retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the purchaser’s counter rights shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these GTCS.
(6) If it becomes apparent after the conclusion of the contract (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardised by the purchaser’s inability to pay, 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 German Civil Code).
§ 6 Retention of title
(1) We retain title to the goods sold 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 purchaser 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 a breach of contract by the purchaser, 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 or/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 purchaser does not pay the purchase price due, we may only assert these rights if we have previously set the purchaser a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
§ 7 Claims for defects of the purchaser
(1) The statutory provisions shall apply to the rights of the purchaser 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 (as defined in § 13 German Civil Code), even if the consumer has processed them further (supplier’s recourse pursuant to §§ 478 German Civil Code). Claims from supplier recourse are excluded if the defective goods have been further processed by the purchaser or another entrepreneur, e.g. by incorporation into another product.
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. All product descriptions and manufacturer’s specifications which are the subject of the individual contract or which were publicly announced by us (in particular in catalogues or on our Internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on the quality of the goods.
(3) Insofar as the state was not agreed upon, it is to be assessed according to the statutory regulation whether a defect exists or not (§ 434 para. 1 p. 2 and 3 German Civil Code). However, we do not assume any liability for public statements by the manufacturer or other third parties (e.g. advertising statements) to which the purchaser has not drawn our attention as being decisive for his purchase.
(4) As a matter of principle, we shall not be liable for defects of which the purchaser is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 German Civil Code). Furthermore, the purchaser’s claims for defects presuppose that he has fulfilled his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). In the case of goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent during delivery, inspection or at any later time, we must be notified of this in writing without delay. In any case, obvious defects must be notified to us in writing within 5 working days of delivery and defects not apparent on inspection within the same period of time from discovery. If the purchaser 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) 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.
(6) We are entitled to make the supplementary performance owed dependent on the purchaser paying the purchase price due. However, the purchaser is entitled to retain a reasonable part of the purchase price in relation to the defect.
(7) The purchaser shall give us the time and opportunity required for the supplementary performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the purchaser shall return the defective item to us in accordance with the statutory provisions. The supplementary performance does not include the removal of the defective item or the renewed installation if we were not originally obliged to install it.
(8) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs as well as, if applicable, removal and installation costs, in accordance with the statutory provisions if there is an actual defect. Otherwise, we may demand reimbursement from the purchaser of the costs incurred from the unjustified request for rectification of the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognisable to the purchaser.
(9) In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the purchaser has the right to remedy the defect himself and to demand reimbursement from us of the expenses objectively necessary for this. We are to be informed immediately of such self-execution, if possible in advance. The right of self-execution does not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
(10) If the supplementary performance has failed or a reasonable deadline to be set by the purchaser for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the purchaser 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.
(11) Claims of the purchaser for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with § 8 and are otherwise excluded.
(12) With regard to the condition of the respective individual part, it applies that these are only functional with the respective associated components of the seller. There is no warranty for the use of individual parts other than those of the seller.
§ 8 Other liabilities
(1) Insofar as nothing to the contrary arises from these GTCS including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
(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 only be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), in the following cases, only
a) for damages arising from injury to life, limb or health,
b) for damages resulting from the breach of an essential contractual obligation (obligation, the fulfilment 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 the compensation of the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from para. 2 shall also apply to third parties as well as to breaches of duty by persons (also in their favour) whose fault we are responsible for according to statutory provisions. They do not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the purchaser under the Product Liability Act.
(4) Due to a breach of duty which does not consist of a defect, the purchaser may only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the purchaser (in particular according to §§ 650, 648 German Civil Code) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
(5) Ogni volta che viene utilizzata, la macchina sunbotics deve essere fissata in base alle disposizioni di sicurezza contenute nelle istruzioni per l’uso. Non si risponde dei danni derivanti da un mancato o errato fissaggio.
§ 9 Statue of limitations
(1) Notwithstanding Section 438 (1) No. 3 of the German Civil Code (German Civil Code), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery.
(2) The preceding limitation period of the law on sales also applies to contractual and non-contractual claims for damages of the purchaser based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 German Civil Code) would lead to a shorter limitation period in individual cases. Claims for damages of the purchaser pursuant to § 8 para. 2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall become statute-barred exclusively according to the statutory limitation periods.
§ 10 Choice of law, jurisdiction and severability clause
(1) The contractual relationship between the purchaser and ourselves as well as these GTCS are subject to the law of the Federal Republic of Germany whilst excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) The exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Landshut. 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 GTCS or a prior individual agreement or at the general place of jurisdiction of the purchaser. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
(3) If a provision or part of a provision is or becomes invalid or unenforceable, such provision will be disregarded and thus does not affect the validity of the remaining provisions in these GTCS. Where required, the purchaser and the seller are obliged to replace the invalid or unenforceable provision with a valid and enforceable provision provided that this does not result in a material change to the content of these GTCS.
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