§ 1 General - Scope of Application
(1) All deliveries, services and offers shall be made exclusively on the basis of these General Terms and Conditions of Sale. These shall form an integral part of all contracts which we conclude with our contractual partners (hereinafter also referred to as "Customers") for the deliveries or services offered by us. They shall also apply to all future deliveries, services or offers to the Customer, even if they are not separately agreed again.
(2) Our Terms and Conditions of Sale shall apply exclusively; any terms and conditions of the Customer or third parties that conflict with or deviate from our General Terms and Conditions of Sale shall not apply, even if we do not separately object to their application in individual cases. Even if we refer to a letter from the customer which contains or refers to the terms and conditions of business of the customer or a third party, this shall not constitute an agreement to the validity of those terms and conditions of business.
§ 2 Offer and Conclusion of Contract
(1) Our offers are always subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. We may accept orders or commissions from the customer within fourteen days.
(2) The legal relationship between us and the Customer shall be governed solely by the written purchase contract, including these General Terms and Conditions of Sale. The latter shall fully reflect all agreements between the contracting parties regarding the subject matter of the contract. Oral promises made by us prior to the conclusion of this contract shall not be legally binding and oral agreements between the contracting parties shall be replaced by the written contract unless it is expressly stated in each case that they shall continue to be binding.
(3) Supplements and amendments to the agreements made, including these General Terms and Conditions of Sale, must be in writing to be effective. With the exception of managing directors or authorized signatories, our employees are not entitled to make verbal agreements deviating from this. Transmission by telefax shall be sufficient to comply with the written form requirement; otherwise, transmission by telecommunication, in particular by e-mail, shall not be sufficient.
(4) Information provided by us on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) shall only be approximate unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components by equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.
(5) We reserve the title or copyright to all offers and cost estimates submitted by us as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the customer. The customer may not make these items available to third parties, either as such or in terms of content, disclose them, use them himself or through third parties, or reproduce them without our express consent. At our request, he shall return these items to us in full and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
(6) Unless otherwise expressly stipulated in the order confirmation, we shall only be obliged to deliver the goods. Installation and assembly services shall only become part of the contract if we have expressly and separately agreed to this.
§ 3 Prices - Terms of Payment
(1) Our prices shall apply to the scope of performance and delivery specified in the order confirmations. Additional or special services shall be invoiced separately. Prices are quoted in EURO "ex works" (Incoterms® 2010) excluding packaging; the latter shall be invoiced separately. The statutory value added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing. Our prices also do not include customs duties, fees and other public charges.
(2) The deduction of a discount shall require a special written agreement.
(3) Unless otherwise stated in the order confirmation, the net purchase price (without deductions) shall be due for payment within 30 days of the invoice date. The statutory regulations concerning the consequences of default in payment shall apply.
(4) The Customer shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been acknowledged by us. In addition, he shall be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
5) We shall be entitled to perform or render outstanding deliveries or services only against advance payment or the provision of security if this has been agreed or if, after the conclusion of the contract, we become aware of circumstances which are likely to substantially reduce the creditworthiness of the customer and as a result of which the payment of outstanding claims by the customer under the respective contractual relationship (including under other individual orders to which the same framework agreement applies) is jeopardized.
§ 4 Installation and assembly services
If we have agreed to install and/or assemble our goods, the following provisions shall apply:
(1) The installation and assembly of equipment by us shall be carried out at the customer's expense. The customer shall in particular bear the work performance in connection with the installation and assembly, the travel costs as well as the expenses including any overnight expenses of our employees that may become necessary as well as other ancillary costs such as surcharges outside the regular working hours and overtime surcharges. The remuneration customary within the meaning of Section 632 (2) of the German Civil Code (BGB) shall be deemed to have been agreed unless an agreement expressly marked as a "fixed price agreement" has been made in writing.
(2) The Customer shall be obligated to create the conditions necessary for proper installation and assembly at its own expense, in particular to ensure the provision of suitable means of transport from the truck, the laying of ready-to-connect electricity, water or waste water supplies and the proper disposal of any residual materials or chemicals. The customer is obligated to name a competent contact person on site who will be available on call on the agreed installation date and who is authorized to provide binding information on the condition of the premises on site that is relevant for the installation and assembly and, in particular, on the condition and load-bearing capacity of the ceiling structures. In the event of a breach of the aforementioned obligations, the customer shall be obliged to pay damages, in particular to reimburse any additional expenses incurred.
(3) Should the installation and assembly fail on the agreed date for reasons for which the customer is responsible, we shall be entitled to set the customer a reasonable period of time to perform the required action with the declaration that, notwithstanding the continued existence of the purchase contract for the equipment, the installation and/or assembly contract shall be terminated if the action to be performed by the customer within the scope of the cooperation is not performed by the expiry of the period of time.
(4) If installation and/or assembly by us is agreed, the risk for the object of purchase shall pass to the customer at the time of delivery, however, at the latest in accordance with § 447 para. 1 BGB (German Civil Code), i.e. upon handover to the transport person by us. This shall also apply if the transport is carried out by our employees.
(5) In the event that the device is taken back as a result of the customer's default in payment, the customer shall, in addition to any other claims for damages, bear the costs for the return of the device, in particular the costs for dismantling, return transport, cleaning and overhaul of the device.
(6) Repair and service work outside the liability for defects as well as the preparation of cost estimates shall be remunerated. The usual remuneration pursuant to Section 632 (2) of the German Civil Code (BGB) shall be deemed to be owed unless a "fixed price agreement" has been expressly agreed in writing.
(7) Cost estimates are always non-binding unless a "fixed price agreement" has been expressly agreed in writing. This shall not apply if the cost estimate is exceeded by more than 20%.
(8) Unless expressly provided otherwise in this § 4, the other provisions of these General Terms and Conditions of Sale shall also apply to installation and assembly services.
§ 5 Retention of Title
(1) We retain title to the purchased item until receipt of all payments under the delivery contract. In the event of conduct by the customer in breach of the contract, in particular in the event of default in payment, we shall be entitled to take back the object of sale. The taking back of the purchased goods by us shall constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to dispose of it; the proceeds of such disposal shall be set off against the customer's liabilities - less reasonable costs of disposal.
(2) The customer shall be obliged to treat the object of sale with care; in particular, he shall be obliged to insure it adequately at his own expense against damage by fire, water and theft at its replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at its own expense.
(3) In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can file a lawsuit 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 judicial and extrajudicial costs of a lawsuit pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
(4) The customer shall be entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including value added tax) of our claim accruing to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer shall remain authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have not been suspended. If this is the case, however, we may demand that the customer inform us of the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment.
(5) The processing or transformation of the object of sale by the customer shall always be carried out on our behalf. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other processed objects at the time of processing. In all other respects, the same shall apply to the object created by processing as to the object of sale delivered subject to reservation of title.
(6) If the object of sale is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including value added tax) to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the customer's item is to be regarded as the main item, it shall be deemed to be agreed that the customer transfers co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us.
(7) The customer shall also assign to us the claims to secure our claims against him which arise against a third party through the combination of the object of sale with a property.
(8) We undertake to release the securities to which we are entitled at the customer's request to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released shall be ours.
§ 6 Terms of Delivery
(1) Deliveries shall be made ex works (Incoterms® 2010). "Delivery" therefore means that we make the goods available to the customer in Ebersberg. We shall neither be obliged to load the goods onto a collecting means of transport, nor shall we be obliged to clear them for export, should this be necessary.
(2) Goods whose destination is in the Federal Republic of Germany shall be shipped to this location at the customer's request. In this case, we shall bear the costs of shipment. § 7 remains unaffected.
(3) Deadlines and dates for deliveries and services promised by us shall always be approximate unless a fixed deadline or a fixed delivery date has been expressly agreed. Delivery periods and delivery dates refer to delivery ex works (Incoterms® 2010).
(4) The start of the delivery period stated by us shall be subject to clarification of all technical issues.
(5) We may - without prejudice to our rights arising from default on the part of the Customer - demand from the Customer an extension of the delivery and performance periods or a postponement of delivery and performance dates by the period during which the Customer fails to meet its contractual obligations towards us.
(6) We shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in the procurement of materials and energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time for which we are not responsible). If such events make the delivery and performance substantially more difficult or impossible and the hindrance is not only of temporary duration, we shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediately notifying the seller in writing.
(7) If we are in default with a delivery or service or if the delivery or service becomes impossible for us, for whatever reason, our liability for damages shall be limited in accordance with § 10 of these General Terms and Conditions of Sale.
§ 7 Place of Performance, Dispatch, Packaging, Transfer of Risk, Acceptance
(1) The place of performance for all obligations arising from the contractual relationship shall be Ebersberg, unless otherwise specified. This shall also apply if we have concluded a contract for installation and/or assembly in addition to the purchase contract, with the restriction that the place of performance for the installation and/or assembly shall be the place where the installation and/or assembly is to be carried out.
(2) The packaging of the purchased item shall be subject to our dutiful discretion.
(3) The risk shall pass to the customer at the time of delivery, but at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply
a) if partial deliveries are made
b) if, in addition to the purchase contract, we have concluded a contract for the installation and/or assembly of the purchased goods, or
installation and/or assembly of the object of purchase, or
c) if, in individual cases, we assume tasks for the customer and in the customer's sphere of duties and interests,
such as, for example, any customs formalities or the organization or conclusion of a shipping or transport contract with third parties in our own name or in the name of third parties (e.g. the customer) in the case of shipment abroad. The mode of shipment is subject to our dutiful discretion.
If the delivery, shipment or handover is delayed as a result of a circumstance the cause of which lies with the customer, the risk shall pass to the customer from the day on which the delivery item is ready for delivery and we have notified the customer of this.
(4) Storage costs after transfer of risk shall be borne by the customer. In case of storage by us, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per expired week. We reserve the right to claim and prove further or lower storage costs.
(5) The consignment shall only be insured by us against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the customer and at his expense.
(6) Insofar as acceptance has to take place, the object of sale shall be deemed to have been accepted when
the delivery and, insofar as we also owe the installation and/or assembly, the installation and/or assembly has been completed,
we have notified the customer thereof with reference to the deemed acceptance pursuant to this § 7 para. (6) and have requested the customer to accept the goods,
ten working days have elapsed since delivery or installation or assembly, or the customer has started to use the purchased item (e.g. has put the delivered luminaire into operation) and in this case five working days have elapsed since delivery or installation or assembly, and
the customer has refrained from acceptance within this period for a reason other than a defect notified to us which makes the use of the purchased item impossible or significantly impairs it.
§ 8 Warranty, material defects
(1) The warranty period shall be one year from delivery or, if acceptance is required, from acceptance.
(2) The delivered items shall be inspected carefully immediately after delivery to the customer or to the third party designated by the customer. They shall be deemed to have been approved if we have not received a written notice of defect with regard to obvious defects or other defects which were identifiable during an immediate, careful inspection within seven working days after delivery of the delivery item or otherwise within seven working days after discovery of the defect or any earlier point in time at which the defect was identifiable for the customer during normal use of the delivery item without closer inspection. Upon our request, the delivery item complained about shall be returned to us freight prepaid. In the event of a justified complaint, we shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the delivery item is located at a different place of intended use.
(3) In the event of material defects of the delivered items, we shall first be obliged and entitled to rectify the defect or to make a replacement delivery at our discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the customer may withdraw from the contract or reasonably reduce the purchase price.
(4) If a defect is due to our fault, the customer may claim damages under the conditions set out in § 10.
(5) In the event of defects in components from other manufacturers which we are unable to remedy for licensing or factual reasons, we shall, at our discretion, assert our warranty claims against the manufacturers and suppliers for the account of the customer or assign them to the customer. Warranty claims against us shall only exist in the case of such defects under the other conditions and in accordance with these General Terms and Conditions of Sale if legal enforcement of the aforementioned claims against the manufacturer and supplier has been unsuccessful or is futile, for example due to insolvency. For the duration of the legal dispute, the limitation period for the relevant warranty claims of the customer against us shall be suspended.
(6) The warranty shall lapse if the customer modifies the delivery item or has it modified by a third party without our consent and the rectification of defects is thereby rendered impossible or unreasonably difficult. In any case, the customer shall bear the additional costs of remedying the defect resulting from the modification.
§ 9 Industrial property rights
(1) We warrant in accordance with this § 9 that the delivery item is free of industrial property rights or copyrights of third parties. Each contracting party shall notify the other contracting party in writing without delay if claims are asserted against it on account of the infringement of such rights.
(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, we shall, at our discretion and at our expense, modify or replace the delivery item in such a way that no third party rights are infringed any more, but the delivery item continues to fulfill the contractually agreed functions, or procure the right of use for the customer by concluding a license agreement. If we do not succeed in doing so within a reasonable period of time, the customer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the customer shall be subject to the limitations of § 10 of these General Terms and Conditions of Sale.
(3) In the event of infringements of rights by the products of other manufacturers supplied by us, we shall, at our discretion, assert our claims against the manufacturers and upstream suppliers for the account of the customer or assign them to the customer. In such cases, claims against us shall only exist in accordance with this § 9 if the judicial enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or is futile, for example due to insolvency.
§ 10 Liability for damages due to fault, warranty liability
(1) Our liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with the provisions of this § 10, insofar as fault is relevant in each case.
(2) We shall not be liable in the event of simple negligence on the part of our executive bodies, legal representatives, employees or other vicarious agents, unless this involves a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install and/or assemble the delivery item free of material defects in a timely manner as well as advisory, protective and custodial obligations which are intended to enable the customer to use the delivery item in accordance with the contract or which are intended to protect the life and limb of the customer's personnel or to protect the customer's property from significant damage.
(3) Insofar as we are liable on the merits for damages in accordance with § 10 para. (2), this liability shall be limited to damages which we foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which we should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the delivery item shall also only be eligible for compensation insofar as such damage typically occurs when the delivery item is used as intended.
(4) in the event of liability for simple negligence, our liability to pay compensation for damage to property and further financial losses resulting therefrom shall be limited in accordance with the current sum insured under our business and product liability insurance as follows:
- EUR 5,000,000 for property damage
- EUR 100,000 for financial losses.
This limitation of our liability shall also apply in the event of a breach of material contractual obligations.
(5) In the event of a delay in delivery, we shall be liable for each full week of delay within the framework of a lump-sum compensation for delay in the amount of 0.5% of the value of the delivery, but in no case in the amount of more than 5% of the value of the delivery.
(6) The above exclusions and limitations of liability shall apply to the same extent in favor of our corporate bodies, legal representatives, employees and other vicarious agents.
(7) Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of performance owed by us, this shall be done free of charge and to the exclusion of any liability.
(8) The limitations of this § 10 shall not apply to our liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
(9) Liability for a guarantee in accordance with § 443 of the German Civil Code (BGB) shall only be owed if the guarantee has been declared by us in writing and by at least one of the persons named in § 2 (3) sentence 2, i.e. at least one managing director or one authorized signatory.
§ 11 Return
(1) Goods subject to complaint may only be returned with our express consent. In the event of unsolicited return or return without a properly completed return slip or return number, we shall be entitled to refuse acceptance or to return the goods at the sender's expense.
(2) In the case of returned goods for which we are not responsible, a handling fee of 20% of the net value of the goods, but at least EUR 50.00, will be charged to cover the internal expenses incurred and any shipping costs.
(3) In the case of repairs which are requested after expiry of the period specified in § 8 para. (1) and which are not carried out on the basis of separately agreed warranty services, the customer shall bear the costs of packaging, freight and the repairs.
§ 12 Final Provisions
(1) Subsidiary agreements must be made in writing.
(2) Should any provision of these General Terms and Conditions be invalid, this shall not affect the legal validity of the remaining provisions. In this case, the ineffective provision must be replaced with initial effect by a provision that corresponds to the intended meaning and purpose of all parties and is feasible in terms of its content.
(3) The place of jurisdiction is Munich (Regional Court Munich I).
(4) Place of performance is Ebersberg, Upper Bavaria.
(5) The law of the Federal Republic of Germany shall apply; the validity of the UN Convention on Contracts for the International Sale of Goods is excluded.
(6) The text of these General Terms and Conditions of Sale shall be interpreted in accordance with German law. It is provided in German and in English. In the event of any discrepancies between the German and English versions, the German version shall prevail.
The data protection practices of Dr. Mach GmbH & Co. KG are in compliance with applicable data protection laws. Detailed information on data protection can be found in the data protection declaration of Dr. Mach GmbH & Co. KG (available at dr-mach.de/de/datenschutz.html).