General Terms and Conditions
item Industrietechnik GmbH
Status: April 2017
§ 1 Scope of application, form
(1) The present General Terms and Conditions (the "Ts&Cs") apply for all our business relationships with our customers (the "Purchasers"). The Ts&Cs apply only if the Purchaser is a commercial party [Unternehmer, "§ 14 German Civil Code [Bürgerliches Gesetzbuch, "BGB"]], a legal entity existing under public law or a special fund established under public law.
(2) The Ts&Cs apply especially for contracts about the sale and/or delivery of moveable items ("goods") without regard to whether we produce the goods ourselves or obtain them from suppliers (§§ 433, 651 BGB). Unless agreed otherwise, the Ts&Cs apply in the version applicable at the time of the Purchaser's order or, in any event, in the version most recently notified to the Purchaser in the form of text as a framework agreement also for similar, future contracts without we again having to refer to these Ts&Cs in each specific case.
(3) Exclusively our Ts&Cs apply. Any different, contrary or supplemental general terms and conditions of the Purchaser only become a part of the contract if and to the extent that we have expressly consented to their applicability. This requirement for consent applies, in any event, for example, also if we carry out the delivery to the Purchaser without reservation when we know about the Ts&Cs of the Purchaser.
(4) Individual agreements with the Purchaser made in the specific case (including side-agreements, supplements and amendments), especially specific guarantees about features or recommendations for using our goods as well as information about the duration and time periods for repairs, require express written confirmation from our main administrative office or our respectively responsible branch in order to be legally valid. Our sales employees are authorized to communicate orders. An order is first deemed to have been accepted when it is confirmed by our company in writing. Such individual agreements, in any event, have priority over these Ts&Cs.
(5) Legally relevant declarations and notices of the Purchaser relating to the contract (e.g. setting deadlines, notifying defects, withdrawal or reduction of price) must be submitted in writing, i.e. in written form or text form (e.g. letter, email, telefax). This does not affect statutory requirements of form and additional proof especially in the case of doubt about the legitimization of the person making the declaration.
(6) References to the application of provisions in the law only have the effect of clarifying the situation. Therefore, the statutory provisions apply also without any such clarification to the extent those provisions are not directly modified or expressly excluded in these Ts&Cs.
§ 2 Conclusion of the contract
(1) Our offers are free and non-binding. This also applies if we have provided to the Purchaser catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product information or documents, also in electronic form, for which we reserve our ownership rights and copyrights; you cannot reproduce or provide such materials to third parties without our express written approval.
(2) The ordering of the goods by the Purchaser is deemed to be a binding offer for a contract. Unless provided otherwise in the order, we are entitled to accept this offer for a contract within two (2) weeks after we receive it. An order must reach a minimum order value of 50.00 Euro, except for orders using the item online shop. Orders are generally binding. Delivered goods which are free of defects will only be taken back by item in exceptional circumstances due to reasons of customer care and after a separate agreement in the specific case. In this situation, we charge re-stocking fees of 20% of the net sales price in the case of profiles and 10% in the case of accessory items. We do not accept the return of customized and assembled goods.
(3) The acceptance can be declared either in writing (e.g. in an order confirmation) or by delivery of the goods to the Purchaser.
§ 3 Delivery period and delay in delivery
(1) Delivery and unloading times are always non-binding unless expressly agreed otherwise in writing. The beginning of the delivery time requires the receipt of all documents to be delivered by the Purchaser, such as necessary approvals, releases, clarification and approval of the plans, compliance with the agreed terms and conditions of payment and other obligations as well as agreement about all technical issues which the Parties reserve for clarification when concluding the contract. If these prerequisites are not fulfilled on time, the delivery time will be reasonably extended.
(2) If we cannot comply with binding delivery periods for reasons for which we are not responsible (non-availability of the service), we will inform the Purchaser about this without undue delay and at the same time notify the likely, new delivery time. If the service also is not available within the new delivery time, we are entitled to completely or partially withdraw from the contract; we will reimburse without undue delay any consideration of the Purchaser which has already been paid. Non-availability of the service for this purpose exists especially if our suppliers do not make timely delivery to us when we have concluded a congruent cover transaction and neither we nor our supplier is at fault or if we do not have an obligation to procure the delivery in a specific case.
(3) The occurrence of our default in delivery is determined in accordance with the provisions in the law. In any event, however, a reminder by the Purchaser is required. If we are in default with delivery, the Purchaser can demand liquidated compensation of its default damages. The liquidated damages for each completed calendar week of default are 0.5% of the net price (delivery value), but a maximum of 5% of the delivery value of the goods which are delivered late. We reserve the right to prove that the Purchaser did not suffer any harm or only suffered materially lower harm than the above liquidated amounts.
(4) The rights of the Purchaser under § 8 of these Ts&Cs and our rights under the law, especially in the case of an elimination of the duty to perform (e.g. as a result of impossibility or complete unreasonableness of the performance and/or corrective performance) are not affected.
§ 4 Delivery, passing of risk, acceptance, default in acceptance
(1) The delivery is made ex warehouse which also constitutes the place of performance for the delivery and any corrective performance. Upon request and at the expense of the Purchaser, the goods will be shipped to another destination (shipped purchase). Unless agreed otherwise, we are entitled to determine by ourselves the type of shipment (especially the transport company, the method of shipment, the packaging). Transport insurance will only be concluded at the express wish of the Purchaser. Any resulting costs are borne solely by the Purchaser.
(2) The risk of accidental loss and accidental deterioration of the goods passes at the latest when the possession is transferred to the Purchaser. In the case of a dispatch purchase, however, the risk of accidental loss and accidental deterioration of the goods as wells as the risk of delay already passes when the goods are handed over to the freight forwarder, the freight company or any other person or agency retained to carry out the shipment. To the extent acceptance has been agreed, this is determinative for the passing of risk. Aside from this, the statutory provisions on the law on contracts for works apply for any agreed acceptance. It is equivalent to a handover or acceptance if the Purchaser is in default with acceptance.
(3) If the Purchaser is in default with acceptance, or if the Purchaser fails to cooperate or if our delivery is delayed for other reasons for which the Purchaser is responsible, we are entitled to demand compensation of the resulting damages, including additional expense (e.g. storage costs). We charge for this purpose liquidated compensation in the amount of 0.5% of the net price (delivery value) per calendar day beginning with the delivery date or, if there is no delivery date, with notification that the goods are ready for shipment.
This does not affect the right to prove higher damages and our statutory claims (especially compensation of increased expenses, reasonable compensation, termination); the liquidated amount, however, will be credited against any further monetary claims. The Purchaser retains the right to prove that we did not incur any damages at all or only materially lower damages than the above liquidated amounts.
§ 5 Prices and terms of payment
(1) Unless agreed otherwise in a specific case, our respectively current prices at the time of conclusion of the contract ex warehouse plus statutory value added tax apply. These prices do not include costs for set-up, commissioning and assembly (see special terms and conditions for assembly) as well as packaging, freight, postage and insurance costs. The prices are calculated on the basis of the applicable costs for wages, materials and other costs on the date of our issuance of an offer. Prices stated in the online shop/web shop are calculated on the basis of the costs for wages, materials and other costs applicable on the date of placing the product on the site. If additional or increased public levies – especially customs duties, adjustment taxes, currency off-sets, accrue between the conclusion of the contract and the delivery due to changes in legal norms, we are entitled to increase the agreed purchase price accordingly. This also applies for inspection fees.
If extraordinary, significant cost increases for raw materials, energy or shipping should arise for us or our suppliers after conclusion of the contract but prior to delivery of the goods and if these increases lead to a significant increase in our purchase prices and total production costs, we shall be entitled to make an immediate request for negotiations with the customer regarding a price adjustment. If we are unable to agree the price within 14 days of receipt of the request for the price increase, both parties shall be entitled to declare extraordinary termination of the contract for the part of the contract that has not yet been performed by means of delivery, without the terminating party incurring liability for a delay in the fulfilment or non-fulfilment of its obligations.
(2) In the case of a dispatch purchase (pursuant to § 4 para. 1 of these Ts&Cs), the Purchaser bears the costs for transport ex warehouse and the costs for any transport insurance that might be requested by the Purchaser. Any customs duties, fees, taxes and other public levies are borne by the Purchaser.
(3) Our performance is subject in Germany in part to the provisions in §13b German Value Added Tax Act [Umsatzsteuergesetz, "UStG"]. The customs tariff numbers and tax rates will be shown in the context of our order confirmation, our delivery certificate and our invoice. Upon accepting our order confirmation, it is agreed that the billing prerequisites under §13b UStG are satisfied.
(4) The purchase price is due and must be paid, at the election of the Purchaser, within 14 days after invoicing and delivery or acceptance in cash with 2% discount for prompt payment or within 30 days without deduction. We reserve the right to apply different conditions in a specific case (payment in advance, one third payment, letter of credit or similar means). In the case of deliveries to foreign countries, we can demand the opening of an irrevocable and confirmed letter of credit, payable to a bank of our selection, or other equivalent security. We send our invoices either by regular mail or electronically by email. However, we are entitled at any time, also in the course of any business relationships, to completely or partially carry out a delivery only in exchange for payment in advance. We will declare a corresponding reservation at the latest in the order confirmation.
(5) Upon expiration of the above payment deadline, the Purchaser is in default. The purchase price bears interest at the respectively applicable statutory default interest rate during the default. We reserve the right to assert any further default damages. Our claim against commercial parties for interest when a commercial claim becomes due (§ 353 German Commercial Code [Handelsgesetzbuch, "HGB") is not affected.
(6) The Purchaser only has rights of set-off or retention to the extent that the Purchaser's claim has been finally adjudicated or is undisputed. This does not affect the rights of the Purchaser in the case of defects in a delivery.
(7) If it becomes apparent after conclusion of the contract (e.g. as a result of the filing of an application for the opening of insolvency proceedings) that our claim for the purchase price is endangered by lack of capacity of the Purchaser to perform, we are entitled to withdraw from the contract in accordance with the provisions in the law on refusing performance and, if applicable, after setting a deadline (§ 321 BGB). In the case of contracts for the manufacture of unique items (individual production), we can immediately declare the withdrawal; this does not affect the statutory provisions about the elimination of the need to set a deadline.
§ 6 Reservation of title
(1) We reserve the title to the sold goods until complete payment of all our present and future claims under the purchase contract and an ongoing business relationship (secured claims).
(2) The goods which are subject to our reservation of title cannot be pledged to third parties nor can title to those goods be transferred as security to third parties prior to complete payment of the secured claims. The Purchaser must inform us in writing without undue delay if an application for the opening of insolvency proceedings is filed or to the extent that third parties have accessed the goods belonging to us (e.g. attachments).
(3) In the case of behavior of the Purchaser constituting a breach of contract, especially in the case of failure to pay the due purchase price, we are entitled to withdraw from the contract in accordance with the provisions in the law and/or demand surrender of possession of the goods on the basis of the reservation of title. The demand for surrender of possession does not also involve at the same time a declaration of withdrawal; instead, we are entitled to only demand surrender of possession of the goods and reserve the right to withdraw. If the Purchaser does not pay the due purchase price, we can only assert these rights if we have previously set a reasonable grace period for the Purchaser to pay without compliance or if setting of such a deadline is not necessary based on the provisions in the law.
(4) The Purchaser is authorized until this authorization is revoked under point (c) to further sell and/or process the goods under reservation of title in the normal course of business. In this event, the following provisions additionally apply.
(a) The reservation of title extends to the products resulting from the processing, combining of our goods in their full value, whereby we are deemed to be the manufacturer. If property rights arise for third parties when processing, combining or connecting our goods to those of third parties, we acquire co-ownership proportionately according to the invoiced values of the processed, combined or connected goods. Aside from this, the same applies for the resulting product as applies for our goods delivered under reservation of title.
(b) The Purchaser already at this time assigns the claims against third parties arising from the further sale of the goods or the product in full or in the amount of any co-ownership share we have under the preceding paragraph to us as security. We accept the assignment. The duties of the Purchaser under para. 2 also apply with regard to the assigned claims.
(c) The Purchaser remains authorized, in addition to us, to collect the claim. We undertake not to collect the claim so long as the Purchaser complies with its obligations to pay us and to the extent there are no problems with the capacity of the Purchaser to perform and we have not asserted the reservation of title by exercising a right under para. 3. However, if this is the case, we can demand that the Purchaser informs us about the assigned claims and their obligors and provides all information required to collect the claims and hands over the corresponding documents and informs the obligors (third parties) about the assignment. We are also authorized in this situation to revoke the authorization of the Purchaser to further sell and process the goods subject to our reservation of title.
(d) To the extent our claims are in total secured by more than 125% without doubt by the above declared assignments or reservations, the excess of the outstanding receivables or the reserved goods will be released at our election upon demand of the Purchaser.
§ 7 Warranty claims of the Purchaser
(1) The provisions in the law apply for the rights of the Purchaser in the case of defects in substance and legal defects (including delivery of wrong items and shortfall on delivery as well as improper assembly or incorrect instructions for assembly) to the extent not provided otherwise below. The special provisions in the law in the case of final delivery of the goods to a consumer (recourse against the supplier pursuant to §§ 478, 479 BGB) are not affected in all cases.
(2) The basis for our liability under warranty is above all the agreement made on the quality of the features of the goods. All product descriptions which are the subject of the individual contract or have been publicly announced by us (especially in catalogues or on our internet homepage) constitute an agreement about the quality of the goods.
(3) To the extent the quality is not agreed, the determination to be made under the statutory provision is whether a defect exists or not (§ 434 para. 1 sentences 2 and 3 BGB). However, we assume no liability for public statements by the manufacturer or other third parties (e.g. statements in advertising).
(4) The warranty claims of the Purchaser require that the Purchaser has complied with its duty under the law to inspect the goods and raise complaints (§§ 377, 381 HGB). If a defect is apparent upon delivery, in the examination or at a later point in time, we must be notified about this in writing without undue delay. In any event, readily apparent defects must be notified in writing within five (5) working days after delivery and defects which could not be identified on the inspection must be notified within the same period of time after they have been discovered. If the Purchaser fails to properly examine the goods and/or give notification of the defects, our liability under the statutory provisions for the defect which has not been notified or has not been notified in a timely manner or which has not been properly notified is excluded.
(5) If the delivered item is defective, we can first choose whether we will provide corrective performance by eliminating the defect (remedial work) or by delivering a defect-free item (replacement delivery). Our right to refuse corrective performance under the prerequisites set forth in the law is not affected.
(6) We are entitled to make the owed corrective performance dependent on the Purchaser paying the due purchase price. However, the Purchaser is entitled to retain a reasonable portion of the purchase price which corresponds to the defect.
(7) The Purchaser must give us the time and opportunity required for the owed corrective performance and especially hand over to us the goods for which objections have been raised for purposes of examination. In the case of a replacement delivery, the Purchaser must return to us a defective item in accordance with the provisions in the law. The corrective performance involves neither removing the defective item nor installing the item again if we were not originally required to install the item.
(8) We bear the expenses required for the purpose of examination and corrective performance, especially the costs for transport, freight, labor and materials (not costs for removal and installation) if a defect actually exists. Otherwise, we can demand from the Purchaser the costs incurred as a result of an unjustified demand to correct a defect (especially costs for examination and transport), unless the Purchaser could not recognize that there was no defect.
(9) In urgent situations, e.g. in the case of danger for operating safety or in order to avoid disproportionate damage, the Purchaser has the right to itself correct the defect and demand from us compensation of the expenses objectively required for this purpose. We must be informed about such own performance without undue delay and, if possible, in advance. The right to correct the defect by the Purchaser does not exist if we would have been entitled to refuse corresponding corrective performance in accordance with the provisions in the law.
(10) If the corrective performance fails or a reasonable time period set by the Purchaser for the corrective performance has expired without compliance or if corrective performance is not necessary under the provisions in the law, the Purchaser can withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the case of an immaterial defect.
(11) Claims of the Purchaser for damages or compensation of expenses incurred in vain exist also in the case of defects only in accordance with § 8 and are otherwise excluded.
§ 8 Other liability
(1) To the extent not provided otherwise in these Ts&Cs, including the following provisions, we are liable in the case of violation of contractual duties and duties outside of contract in accordance with the provisions in the law.
(2) We are liable for damages – regardless of the legal basis – in the case of intentional and grossly negligent misconduct. In the case of simple negligence, we are liable in accordance with the provisions in the law, subject to a less severe standard of liability (e.g. for the standard of care exercised in the own affairs) only
a) for damages resulting from injury to life, physical integrity or health,
b) for damages resulting from a not completely immaterial violation of a material contractual duty (an obligation which must be fulfilled in order to first make it even possible for proper performance of the contract and which the contract partner normally relies upon and can rely upon being complied with); in this situation, however, our liability is limited to compensation for the typically foreseeable damages.
(3) The limits on liability set forth in para. 2 apply also in the case of violations of duty by or for the benefit of persons whose culpable conduct we must bear responsibility under the provisions in the law. The limits on liability do not apply to the extent we fraudulently fail to disclose a defect or have assumed a guarantee for the quality of the goods and for claims of the Purchaser under the German Product Liability Act [Produkthaftungsgesetz].
(4) With regard to a violation of duty which does not constitute a defect, the Purchaser can only withdraw from or terminate the contract if we are responsible for the violation of a duty. The Purchaser has no free right to terminate (especially under §§ 651, 649 BGB). Aside from this, the prerequisites and legal consequences set forth in the law apply.
§ 9 Time bar
(1) As a deviation from § 438 para. 1 no. 3 BGB, the general time bar period for claims based on defects in substance and legal defects is one year after delivery. To the extent that acceptance has been agreed, the time bar begins upon acceptance.
(2) However, if the goods involve construction or are an item which has been used for construction in accordance with its normal use and this has caused the defect (construction materials), the time bar period under the statutory provision is 5 years starting on delivery (§ 438 para. 1 no. 2 BGB). This does not affect any further special provisions in the law on time bar (especially § 438 para. 1 no. 1, para. 3, §§ 444, 479 BGB).
(3) The above provisions on time bar under the law governing purchase contracts apply also for claims of the Purchaser for damages based on contract and outside of contract which are caused by a defect in the goods unless the application of the regular statutory time bar period (§§ 195, 199 BGB) would lead to a shorter time bar period in the specific case. Claims of the Purchaser for damages under § 8 para. 2 sentence 1 and sentence 2(a) as well as under the German Product Liability Act are time barred, however, exclusively in accordance with the statutory time bar periods.
§ 10 Final provisions
(1) The law of the Federal Republic of Germany, excluding the international uniform law, especially the UN Convention on Contracts for the International Sale of Goods (CISG), apply for these Ts&Cs and the contractual relationship between us and the Purchaser.
(2) If the Purchaser is a commercial party within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, exclusive jurisdiction, including international jurisdiction, for all disputes arising directly or indirectly under the contractual relationship is at our business headquarters in Solingen. This applies accordingly if the Purchaser is a commercial party [Unternehmer] within the meaning of § 14 BGB. However, we are also entitled in all cases to file a complaint at the place of performance for the delivery obligation under these Ts&Cs or at a jurisdiction individually agreed upon or at the general jurisdiction of the Purchaser. Statutory provisions which have priority, especially concerning exclusive jurisdiction, are not affected.
(3) A transfer of the contractual rights and duties to third parties by the Purchaser is only possible with our written approval.
(4) The invalidity of individual provisions in these General Terms and Conditions for Sale does not affect the validity of the other provisions. Invalid provisions are deemed to have been replaced by those valid provisions which are capable of realizing as far as possible the economic purpose of the invalid provision.