Legal / Terms and Conditions
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General Terms and Conditions for Deliveries and Services of
Firma
Kling GmbH
Carl- Benz- Strasse 14
75217 Birkenfeld
Status: June 2025
Our GENERAL TERMS AND CONDITIONS apply exclusively. Insofar as these do not contain any provisions, the law shall apply. We do not recognise any terms and conditions of the contractual partner that conflict with or deviate from our GENERAL TERMS AND CONDITIONS or the law to our disadvantage, unless we have expressly agreed to their validity in writing. Our GENERAL TERMS AND CONDITIONS shall also apply if our contractual services or deliveries are provided without reservation in the knowledge of terms and conditions of the contractual partner that conflict with our GENERAL TERMS AND CONDITIONS or deviate from the law to our disadvantage.
1.2. Our GENERAL TERMS AND CONDITIONS also apply to all future transactions with the contractual partner.
1.3. Our GENERAL TERMS AND CONDITIONS apply only 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, subsequent changes to the contract content, reservation of self-supply
2.1. Unless expressly designated as fixed, our offers and cost estimates are subject to change and non-binding.
2.2. We reserve all rights to all offer and contract documents without restriction, unless expressly agreed otherwise. Offer documents must be returned to us immediately upon request if the order is not placed with us. The contractual partner cannot assert a right of retention in this regard.
2.3. We may make the contractual partner's documents available to third parties to whom we have legitimately transferred deliveries and services.
2.4. After conclusion of the contract, we reserve the right to make the following changes to the contractual products, provided that this is reasonable for the contractual partner:
➢ Product changes as part of ongoing product development and improvement;
➢ Minor and insignificant deviations in colour, shape, design, dimensions, weight or quantity;
➢ customary deviations.
2.5. The contractual partner is obliged to inform us when placing an order if there are any circumstances under which we may not deviate from their requirements and specifications.
2.6. We shall endeavour to accommodate any requests for changes made by the contractual partner after conclusion of the contract with regard to the deliveries and/or services covered by the contract, insofar as this is reasonable within the scope of our operational capacity.
Insofar as the examination of the possibilities for change or the actual implementation of the changes have an impact on the contractual service structure (remuneration, deadlines, etc.), the contractual provisions must be amended in writing without delay. We may charge reasonable additional remuneration for the duration of the interruption due to the examination of the change request and the agreement on the adjustment of the contractual provisions, based on the hourly rates of our employees who could not be deployed elsewhere due to the interruption.
We may also charge an additional reasonable fee for any necessary assessment of whether and under what conditions the desired change can be implemented, provided that we inform the contractual partner of the need for such an assessment and the contractual partner places a corresponding assessment order..
2.7. If errors occur on our part through no fault of our own when concluding the contract, for example due to transmission errors, misunderstandings, etc., compensation for damages on our part is excluded in accordance with Section 122 of the German Civil Code (BGB).
2.8. The contract is concluded subject to correct and timely delivery by our suppliers. This only applies in cases where we are not responsible for the non-delivery, in particular if a congruent covering transaction has been concluded with our supplier.
The contractual partner shall be informed immediately of the unavailability of the services. The consideration shall be refunded immediately. We shall immediately present the cover contract to the contractual partner and assign the resulting rights to them to the extent necessary.
3. Prices, terms of payment, reservation of subsequent performance
3.1. We reserve the right to adjust our prices appropriately if, after conclusion of the contract, cost reductions or cost increases occur for which we are not responsible, in particular due to collective wage agreements or changes in material prices. We shall provide evidence of this to the contractual partner upon request.
3.2. Unless otherwise agreed, our prices are ex works/warehouse and exclude postage, shipping, freight, packaging, insurance, installation and assembly services. Value added tax will be charged at the applicable statutory rate.
3.3. Subject to separate agreements, payments by the contractual partner are due immediately and without deduction. The deduction of discounts requires a special written agreement. The contractual partner shall be in default ten days after the due date without further explanation on our part if they have not paid. The statutory provisions shall apply to the consequences of default in payment.
3.4. In the event of deferral, we shall be entitled to charge interest in accordance with the statutory default interest rates for the deferral period.
3.5. We shall be entitled to demand reasonable instalment payments plus the applicable statutory value added tax.
3.6. Bills of exchange and cheques 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 cheque amounts shall be borne by the contractual partner and are due for payment immediately. Fulfilment shall only take effect upon redemption of the cheques or bills of exchange and our release 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 have been recognised. The contracting party shall only be entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.
3.8. In the event of defects, the contractual partner shall not be entitled to a right of retention unless the delivery is obviously defective or the contractual partner is obviously entitled to refuse acceptance of our services; in such a case, the contractual partner is only entitled to withhold payment to the extent that the amount withheld is in reasonable proportion to the defects and the anticipated costs of subsequent performance (in particular, rectification of defects). The contractual partner is not entitled to assert claims and rights due to defects if it has not made due payments and the amount due is in reasonable proportion to the value of the defective deliveries or services.
4. Delivery or service time, delays in delivery or service for which we are not responsible, delay in delivery or service, impossibility, default of acceptance, breach of obligations to cooperate
4.1. The specified delivery or service times are only fixed dates if they are expressly stated as such.
4.2. Compliance with delivery or service obligations, in particular delivery dates, requires:
➢ the timely and proper fulfilment of any obligations of cooperation on the part of the contractual partner, in particular the receipt of documents and information to be provided by the contractual partner;
➢ clarification of all technical details with the contractual partner;
➢ receipt of agreed instalment payments or the opening of agreed letters of credit;
➢ the existence of any necessary official approvals and licences.
The right to plead non-performance of the contract is reserved.
4.3. Delays in delivery or performance for which we are not responsible:
4.3.1. We shall not be responsible for delays in delivery or performance due to the following obstacles to delivery and performance, unless we have exceptionally assumed a procurement risk or guarantee with regard to meeting deadlines or dates. The same shall apply if these obstacles occur at our suppliers or their sub-suppliers:
Circumstances of force majeure and obstacles to delivery and performance,
➢ which occur after conclusion of the contract or become known to us after conclusion of the contract through no fault of our own, and
➢ in respect of which we can prove that they could not have been foreseen or prevented even with due care on our part and for which we are not guilty of any fault in terms of assumption, precaution or prevention.
Under the aforementioned conditions – occurrence or disclosure through no fault of our own only after conclusion of the contract, unpredictability and unavoidability proven by us – this includes in particular:
Justified industrial action (strikes and lockouts); operational disruptions; raw material shortages; failure of operating and auxiliary materials.
4.3.2. Claims for damages by the contracting party are excluded in the event of delays in delivery and performance within the meaning of Section 4.3.1.
4.3.3. In the event of a permanent impediment to delivery and performance within the meaning of Section 4.3.1, each contracting party shall be entitled to terminate the contract immediately by withdrawing from it in accordance with the statutory provisions.
4.3.4. In the event of a temporary impediment to delivery and performance within the meaning of Clause 4.3.1., we shall be entitled to postpone deliveries and services for the duration of the impediment plus a reasonable start-up period. If we can prove to the contracting party that delivery and performance have been made unreasonably difficult, we shall be entitled to withdraw from the contract. The contractual partner shall be entitled to withdraw from the contract under the conditions set out in Section 4.5 below.
Section 323 (4) of the German Civil Code (BGB) applies accordingly to our right of withdrawal. With regard to the contractual partner's right of withdrawal, the provisions of Section 323 (4) – (6) BGB apply. Section 326 of the German Civil Code (BGB) and the references therein shall apply accordingly to the legal consequences of withdrawal; any deliveries or services already provided by the contractual partner that are not owed may be reclaimed by the contractual partner in accordance with Sections 346–348 of the German Civil Code (BGB).
4.4 Delays in delivery or performance for which we are responsible: 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:
4.4.1. Damages in addition to performance (Section 280 (2) in conjunction with Section 286 of the German Civil Code (BGB)):
If there is no intentional or grossly negligent behaviour on our part, on the part of our legal representatives or vicarious agents, we shall owe a lump-sum compensation for delay of 0.5% of the net invoice amount of the deliveries or services affected by the delay for each completed week of delay, up to a maximum of 5% of the net invoice amount. In the event of gross negligence on our part, on the part of our legal representatives or vicarious agents, our liability for damages shall be limited to the foreseeable, typically occurring damage.
4.4.2. Compensation in lieu of performance (Section 281 of the German Civil Code (BGB)): Our liability is 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.
4.4.3. The above limitations of liability shall not apply
➢ if the contractual partner has linked the continuation of its interest in performance to the timeliness of performance in the contract (fixed-date transaction);
➢ if the contractual partner is entitled to assert that its interest in the further performance of the contract has ceased to exist as a result of a delay in delivery for which we are responsible;
➢ if, in exceptional cases, we have expressly assumed a procurement risk or guarantee with regard to meeting deadlines or dates. 4.5. If we can prove that we are not responsible for the delay, the contractual partner shall only be entitled to withdraw from the contract,
➢ if the latter has linked the continuation of its interest in performance to the timeliness of performance in the contract (fixed-date transaction) or
➢ he proves that, due to the delay in delivery or performance, his interest in performance has ceased to exist or that it is unreasonable for him to maintain the contractual relationship.
In all other respects, Section 323 (4) – (6) of the German Civil Code (BGB) shall apply. The legal consequences of withdrawal shall be governed by the statutory provisions (Sections 346 et seq. BGB).
4.6. In the event that we are unable to deliver our goods or services, we shall be liable in accordance with the statutory provisions, with the following limitation on the amount of our liability:
Unless there is intent or gross negligence on our part, on the part of our legal representatives or vicarious agents, our liability for damages and reimbursement of futile expenses is limited to a total of 20% of the net invoice amount of our deliveries and services; in the event of gross negligence, it is limited to the foreseeable, typically occurring damage. This limitation of liability shall not apply if, in exceptional cases, we have assumed a procurement risk. The contractual partner's statutory right to withdraw from the contract in the event of impossibility of our deliveries or services remains unaffected. 4.7. We are entitled to make partial deliveries or provide partial services to an extent that is reasonable for the contractual partner.
4.8. If the contractual partner defaults on acceptance or acceptance at the place of performance, collection or call-off of the goods – even in the case of partial deliveries – if the delivery is delayed in any other way for reasons for which the contractual partner is responsible, or if the contractual partner culpably violates other obligations to cooperate, we shall be entitled – without prejudice to further legal claims – to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.
5. Transfer of risk, insurance
5.1. The risk of accidental loss or accidental deterioration shall pass to the contractual partner as soon as the delivery has been handed over to the person or institution designated for collection or execution of the delivery, but at the latest when it leaves our factory. This also applies to any deliveries made by our own vehicles or carriage and packaging free of charge on the basis of a special agreement, and also in cases where we have undertaken assembly, installation or other services for the contractual partner.
5.2. In the event of delay in acceptance, collection, call-off or collection, or delay in our deliveries or services for reasons for which the contractual partner is responsible, the risk of accidental loss or accidental deterioration shall pass to the contractual partner at the point in time at which the latter falls into default or at which the deliveries or services could have been made in accordance with the contract if the contractual partner had acted in accordance with its obligations..
5.3. At the request of the contracting party, the delivery shall be insured at its expense against theft, breakage, fire, water and transport damage as well as other insurable damage from the point of transfer of risk.
6. Retention of title
61. We reserve title to the delivery items ("reserved delivery") until all payments arising from the business relationship with the contractual partner have been received. The retention of title also extends to the recognised balance, insofar as we post claims against the contractual partner in a current account (current account reservation). If, in order to effect the payments to be made to us for the delivery subject to retention of title, a bill of exchange liability on our part is established, the retention of title shall not expire before the expiry of our bill of exchange liability; if a cheque-bill of exchange procedure has been agreed with the contractual partner, the reservation shall also extend to the redemption of the bill of exchange accepted by us by the contractual partner and shall not expire when the cheque received is credited to us.
6.2. The contractual partner is entitled to resell the goods subject to retention of title in the ordinary course of business; however, it hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claims which accrue to it from the resale against its customers or third parties. If the contractual partner includes the claims from the resale of the reserved delivery in a current account relationship with its customer, the current account claim shall be assigned in the amount of the recognised balance; the same shall apply to the "causal" balance in the event of the contractual partner's insolvency. The contractual partner shall remain authorised to collect the assigned claims even after their assignment. Our authority to collect the claims ourselves shall remain unaffected by this, 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 fulfils its payment obligations properly, is not in default of payment and no application for the opening of insolvency proceedings has been filed or there is no suspension of payments.
Transfer by way of security or pledging are not covered by the contractual partner's authority to sell.
6.3. If our obligation under clause 6.2 above to collect the claims ourselves ceases to apply, not to collect the claims ourselves, we shall be entitled – subject to the provisions of insolvency law – to revoke the right of resale and to demand the assignment of the contractual partner's claims for surrender against third parties or, after setting a reasonable deadline, to take back the goods subject to retention of title. The contractual partner is obliged to surrender the goods; the contractual partner cannot assert a right of retention against this claim for surrender. Our taking back of the goods subject to retention of title constitutes a withdrawal from the contract.
We may – subject to the provisions of insolvency law – appropriately utilise the reserved delivery withdrawn for the aforementioned reasons after giving prior warning and setting a deadline; the proceeds of utilisation shall be offset against the contractual partner's liabilities, less reasonable utilisation costs.
Under the conditions that entitle us to revoke the contractual partner's right of resale, we may also revoke the collection authorisation and demand that the contractual partner informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment.
6.4. In the event of damage to or loss of the goods subject to retention of title, as well as a change of ownership or residence, the contractual partner must notify us immediately in writing. The same applies in the event of seizures or other interventions by third parties, so that we can take legal action in accordance with Section 771 of the German Code of Civil Procedure (ZPO). If the third party is unable to reimburse us for the judicial and extrajudicial costs of legal action in accordance with § 771 ZPO, the contractual partner shall be liable for the loss incurred by us. If the release of the reserved delivery is achieved without legal action, the costs incurred in this process may also be charged to the contractual partner, as may the costs of returning the seized reserved delivery.
6.5. The processing or transformation of the reserved delivery by the contractual partner is always carried out on our behalf. If the reserved delivery is processed with other items that do not belong to us, we shall acquire co-ownership of the new item in proportion to the value of the reserved delivery (final invoice amount including VAT) to the values of the other processed items at the time of processing or transformation.
The same applies to the item created by processing or transformation as to the reserved delivery. The contractual partner is granted a contingent right to the item created by processing or transformation corresponding to their contingent right to the reserved delivery.
6.6. If the goods subject to retention of title are inseparably mixed or combined with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the goods 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 combination. If the mixing or combining is carried out in such a way that the item belonging to the contractual partner is to be regarded as the main item, it shall be deemed agreed that the contractual partner shall transfer proportional co-ownership to us. The contractual partner shall hold the sole ownership or co-ownership in safekeeping for us.
6.7. In the event of resale of our reserved delivery after processing or transformation, the contractual partner hereby assigns to us by way of security its remuneration claims in the amount of the final invoice amount (including value added tax) of our claims.
If, as a result of processing, transformation, mixing or combining the goods subject to retention of title with other items not belonging to us, we only acquire co-ownership in accordance with clause 6.5. or 6.6., the contractual partner's claim for remuneration shall only be assigned to us in advance in proportion to the final amount invoiced by us for the reserved delivery, including value added tax, to the final invoice amounts for the other items not belonging to us.
In all other respects, the above clauses 6.2 to 6.4 shall apply mutatis mutandis to the claims assigned in advance.
6.8. If the retention of title or assignment is not effective under foreign law in the jurisdiction in which our delivery under retention of title is located, the security corresponding to the retention of title and assignment in this jurisdiction shall be deemed to have been agreed.
If the cooperation of the contractual partner is required for the creation of such rights, the contractual partner shall be obliged, at our request, to take all measures necessary to establish and maintain such rights.
6.9. The Contractual Partner is obliged to treat the goods subject to retention of title with care and to maintain them at its own expense; in particular, the Contractual Partner is obliged to insure the goods subject to retention of title at its own expense in our favour at replacement value against theft, robbery, burglary, fire and water damage. The contractual partner hereby assigns to us all insurance claims arising from this in respect of the goods subject to retention of title. We accept the assignment.
Furthermore, we reserve the right to assert our claims for performance or damages.
6.10. The contractual partner also assigns to us the claims to secure our claims against him which arise against a third party through the connection of the reserved delivery with a piece of land.
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 realisable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is at our discretion..
7. Acceptance
7.1. If our deliveries or services are subject to the law governing contracts for work and services, the contractual partner shall be obliged, at our discretion, to carry out a written preliminary acceptance at our factory and/or a written acceptance at its factory as soon as it has been notified of the completion of the delivery item or any agreed ready-to-operate assembly, or if any contractually stipulated testing has taken place.
Acceptance cannot be refused on the grounds of minor defects.
Acceptance shall be deemed to have taken place if the contractual partner does not accept our deliveries or services within a reasonable period specified by us, even though it is obliged to do so.
7.2. Upon acceptance, our liability for obvious defects shall lapse, unless the contractual partner has reserved the right to assert such claims upon acceptance.
7.3. If testing has been agreed, the contracting party undertakes to test the functions of the delivery item for the specified period. In addition to functionality, these tests must also include safety testing to ensure compliance with the regulations applicable to the respective industry, such as VDE, the Machinery Protection Act, etc.
7.4. We may also demand partial acceptance, provided that there are no objective reasons to the contrary and this is reasonable for the contractual partner.
8. Service description, liability for defects
8.1. The qualities listed in our contract documents comprehensively and conclusively define the characteristics of our deliveries and services. In case of doubt, these are merely the subject of quality agreements and not of guarantees or assurances. In case of doubt, our statements and declarations in connection with this contract do not contain any guarantees or assurances in the sense of an increase in liability or the assumption of a special obligation to perform. In case of doubt, only express written declarations on our part with regard to the granting of guarantees and assurances shall be authoritative.
8.2. No liability shall be accepted for damage resulting from the following causes: unsuitable or improper use, natural wear and tear, faulty or negligent handling, improper modifications made by the customer or third parties without our prior consent.
8.3. The customer shall not be entitled to assert claims for defects in the event of only insignificant deviations from the agreed quality or only insignificant impairment of the usability of our deliveries or services..
8.4. The customer's rights in respect of defects presuppose that he has duly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code).
8.5. If there is a defect, we shall be entitled, at our discretion, to remedy the defect or to deliver a new item free of defects. If one or both of these types of subsequent performance are impossible or disproportionate, we shall be entitled to refuse them. We may also refuse subsequent performance if the customer fails to fulfil their payment obligations to us to an extent corresponding to the defect-free part of the service provided. We are obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour 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 are entitled to have the defect remedied by third parties. Replaced parts become our property.
8.6. If subsequent performance is impossible or fails, or if there is a culpable or unreasonable delay or serious and definitive refusal to provide subsequent performance on our part, or if subsequent performance is unreasonable for the customer, the customer shall be entitled, at their discretion, either to reduce the purchase price accordingly (reduction) or to withdraw from the contract (withdrawal).
8.7. Insofar as the contractual provisions on the prerequisites and consequences of subsequent performance, reduction and withdrawal do not contain any or deviating provisions, the statutory provisions on these rights shall apply.
8.8. The customer's claims for damages and reimbursement of expenses in connection with defects shall be governed by the following provisions, Clauses 8.8.1 to 8.8.4 inclusive, regardless of the legal nature of the claim, in particular with regard to claims for defects and breaches of duty, as well as tortious claims.
8.8.1. We shall be liable for damages without limitation in accordance with the statutory provisions:
- if intentional;
- in the event of culpable injury to life, limb or health;
- in the event of defects or other circumstances that have been fraudulently concealed, or
- in the case of defects whose absence is guaranteed or where a guarantee has been given for the quality.
8.8.2. Furthermore, we shall be liable for damages in accordance with the statutory provisions, whereby our liability for damages shall be limited (except in the cases specified in section 8.8.1 above) to the amount of damage typically foreseeable for the type of contract. 8.8.1.) limited to the foreseeable, typically occurring damage:
- in the event of gross negligence on the part of our legal representatives, executive employees and other vicarious agents;
- in the event of slight negligence on the part of our legal representatives, executive staff and other vicarious agents, provided that this constitutes a breach of essential contractual obligations (obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the customer may regularly rely).
8.8.3. Liability under the Product Liability Act remains unaffected.
8.8.4. Unless otherwise specified in Section 8.8 above, further claims are excluded.
8.9. The statutory provisions governing the burden of proof remain unaffected by the above terms and conditions of this Section 8.
8.10. We shall only be obliged to reimburse the costs of installing and removing the defective purchased item if we are at fault. In such a case, the costs shall be limited to the costs of installation and removal at the place of delivery and to the extent of installation and removal that was foreseeable for us.
9. Liability for ancillary obligations
If, due to the fault of us, our legal representatives or our vicarious agents, the delivered item cannot be used by the contractual partner in accordance with the contract as a result of omitted or incorrect execution of proposals and consultations prior to the conclusion of the contract as well as other contractual ancillary obligations (in particular instructions for operation and maintenance of the delivery item), the provisions of Sections 8.7 to 8.10 above shall apply accordingly, excluding any further claims by the contractual partner.
10. Total liability, withdrawal by the contracting party
10.1. The following provisions apply to claims by the contracting party outside the scope of liability for material defects. Our statutory or contractual rights and claims shall neither be excluded nor restricted.
10.2. With regard to liability for damages – subject to the separately regulated liability for delay (Section 4.6.) and impossibility (Section 4.8.) – the provisions of Sections 8.7. and 8.8. above shall apply accordingly. Any further liability for damages is excluded, regardless of the legal nature of the claim asserted. This applies in particular to claims for damages in addition to performance and damages in lieu of performance due to breaches of duty, as well as to tortious claims for compensation for property damage in accordance with Section 823 of the German Civil Code (BGB).
10.3. The limitation under clause 10.2 shall also apply if the contractual partner demands reimbursement of expenses.
10.4. Any fault on the part of our legal representatives and vicarious agents shall be attributed to us.
10.5. The statutory provisions on the burden of proof remain unaffected. 10.6. Insofar as our liability is excluded or limited, this also applies with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.
10.7. The contractual partner may only withdraw from the contract within the framework of the statutory provisions if we are responsible for the breach of duty. In the cases of clause 8.6. (failed subsequent performance, etc.) and in the event of impossibility, however, the statutory requirements shall remain in force; the provisions of clauses 4.5.3, 4.5.4 and 4.7 above shall apply to the contractual partner's right of withdrawal in the event of a delay in our deliveries or services. In the event of breaches of duty, the contractual partner must declare within a reasonable period of time, at our request, whether it will withdraw from the contract due to the breach of duty or insist on delivery.
11. Rights to know-how and inventions
Confidential, valuable and advanced knowledge (know-how) available to us or acquired during the performance of contracts concluded with us, as well as inventions and any related industrial property rights, shall be our sole property, subject to separate agreement or the contractual partner's right to use or utilise the delivery items in accordance with the meaning and purpose of the contractual relationship.
12. Tools
12.1. Unless otherwise agreed, the tools developed by us for the manufacture of the delivery items shall remain our property, even if the contractual partner contributes to the costs thereof (or bears the costs thereof in full).
12.2. If a tool needs to be repaired or replaced in whole or in part due to natural wear and tear resulting from the manufacture of the delivery items for the Contractual Partner, we may demand reimbursement of the necessary costs in accordance with the Contractual Partner's original contribution to the cost of the tool.
12.3. If a change or replacement of the tool is necessary due to changed requirements of the contracting party for the delivery items to be manufactured, the contracting party shall bear the costs incurred as a result.
13. Infringement of third-party rights
We do not guarantee that the use, installation or resale of the delivery items will not infringe any third-party property rights; however, we assure you that we are not aware of any such third-party property rights to the delivery items.
14. Limitation period
14.1. The limitation period for claims and rights due to defects in deliveries or services – regardless of the legal basis – is one year; in the case of multi-shift operation, the aforementioned limitation period is reduced to six months. However, this does not apply in the cases of Sections 438 (1) No. 1, 438 (1) No. 2, 479 (1) and 634 a) (1) No. 2 of the German Civil Code (BGB); in this respect, a limitation period of three years applies.
14.2. The limitation periods specified in Section 14.1 also apply to all claims for damages against us that are related to the defect, regardless of the legal basis of the claim. Insofar as claims for damages of any kind exist against us that are not related to a defect, the limitation period specified in Section 14.1, sentence 1 shall apply.
14.3. The limitation periods under clauses 14.1. and 14.2. shall not apply
➢ in the event of intent;
➢ if we have fraudulently concealed the defect or have assumed a guarantee for the quality of the deliveries or services; in the case of fraudulent intent, the provisions of Clause 14.1. the statutory limitation periods that would apply in the absence of fraudulent intent, excluding the extension of the period in the event of fraudulent intent in accordance with Sections 438(3) and 634a(3) of the German Civil Code (BGB);
➢ for claims for damages in cases of injury to life, limb, health or freedom;
➢ for claims under the Product Liability Act;
➢ in the event of a grossly negligent breach of duty or
➢ in the event of a breach of essential contractual obligations.
In this respect, the statutory limitation periods shall apply. 14.4. Unless expressly stated otherwise, the statutory provisions on the commencement of the limitation period, the suspension of expiry, the suspension and the recommencement of periods shall remain unaffected.
14.5. Claims for reduction and the exercise of a right of withdrawal are excluded if the claim for subsequent performance is time-barred. In this case, however, the contractual partner may refuse payment of the remuneration to the extent that it would be entitled to do so on the basis of the withdrawal or reduction.
15. Assignment of claims by the contractual partner
Claims against us in relation to the deliveries or services to be provided by us may only be assigned with our prior written consent.
16. Contractual penalty
All rights (in particular property rights and copyrights or copyright exploitation rights as well as industrial property rights) to the contractual documents provided to the contractual partner within the scope of our business relationship (in particular drafts, drawings, brochures, catalogues, illustrations, calculations, product descriptions, etc.) as well as samples, models and prototypes provided to the contractual partner within the scope of our business relationship are exclusively reserved to us, unless expressly agreed otherwise. The contractual partner may only use and exploit the aforementioned documents, samples, models and prototypes within the scope of the contracts concluded with us and only with our consent. They must be kept confidential, unless they were already known to the contractual partner upon receipt or were generally accessible or became public later without the contractual partner's involvement 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 neither be imitated nor reproduced in any other way, nor may such imitated or reproduced products be distributed or exploited in any other way.
The contractual partner undertakes to pay us a contractual penalty of €5,000.00 for each breach of the aforementioned obligations, unless it can prove that it is not at fault. We reserve the right to claim further damages.
17. Framework and call-off orders
Framework and call-off orders oblige the contractual partner to accept the total quantity underlying the framework/call-off order. The term begins on the date of confirmation or, in the case of custom-made products, on the date of the first delivery or our written notification of readiness for delivery. If no acceptance dates, terms or production batch sizes have been agreed for framework and call-off orders, we are entitled to demand a binding commitment from the contractual partner three months after order confirmation. If the contractual partner fails to meet call-off dates, we shall be entitled, one month after written notification and with reference to the consequences of the failure to call off, to deliver and invoice the entire quantity in full. Further claims, in particular those due to default on the part of the contractual partner, shall remain unaffected. If the graduated prices on which an annual call-off order is based are changed during the term, the quantity called off after the price change shall be invoiced at the changed prices. Unilateral increases in the graduated price by us are only permissible if the increase in the graduated prices merely compensates for specific cost increases incurred by us.
18. Place of performance, place of jurisdiction, applicable law, intra-Community acquisition, severability clause
18.1. Unless otherwise agreed, the place of performance shall be exclusively our registered office.
18.2. 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 cheques – shall be our registered office or, at our discretion, the registered office of the contractual partner. The above agreement on the place of jurisdiction shall also apply to contractual partners based abroad.
18.3. All rights and obligations arising from and in connection with the contractual relationship shall be governed exclusively 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), without regard to conflict of law provisions.
18.4. Should any provision in these GENERAL TERMS AND CONDITIONS or any provision within the framework 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.
18.5. Contractual partners from EC member states are obliged to compensate us for any damage we may incur in the event of intra-Community acquisition.
➢ due to tax offences committed by the contractual partner itself or
➢ due to incorrect or omitted information provided by the contractual partner regarding their circumstances relevant for taxation.
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