Terms and Conditions
General Terms and Conditions of the company A&M Stanzformzubehör Olaf Abendroth GmbH (rev. 04/2023 )
I. General
1. The following General Terms and Conditions of Sale and Delivery (hereinafter "GTC") apply to all our business relationships with our customers (hereinafter "Customer") concerning the sale and/or delivery of movable goods (hereinafter "Goods"). The GTC apply only if the customer is an entrepreneur within the meaning of § 14 of the German Civil Code (BGB), a public law legal entity or a special public fund. The GTC in the version valid at the time of the customer's order or, in any case, in the version last communicated to him/her in writing, shall also apply to all future contracts without the need for them to be agreed upon again and without the need to be pointed out again for each further contract concluded.
2. In relation to our customers, only our GTC apply. Deviating, conflicting or supplementary general terms and conditions of the customer or parts thereof shall only become part of the contract if we have expressly agreed to their validity. This requirement for consent applies in any case, in particular even if we execute the customer's order without reservation, despite knowledge of conflicting or deviating conditions of the customer.
3. In the contracts, all agreements made between the customer and us to fulfill the obligations of performance are recorded in writing. Individually agreed upon terms with the customer shall take precedence over these GTC. For such agreements, subject to contrary evidence, a written contract or written confirmation is decisive.
4. Declarations and notifications (e.g. defect notices, deadlines, declarations on legal consequences, etc.) to be made by the customer to us after conclusion of the contract shall require the text form for their effectiveness.
5. The customer agrees that we may process data obtained in connection with the business relationship, whether obtained from the contracting partner itself or from third parties, in accordance with the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG).
II. Offer and Conclusion of Contract
1. All offers are non-binding and subject to change unless we have expressly designated them as binding in writing. This also applies to catalogs, technical documentation (e.g. drawings, plans, calculations, etc.), other product descriptions or documents, even if they have been directly provided to the customer. If we have expressly marked offers as binding, we are bound by them for a period of 30 days.
2. Technical changes as well as changes in shape, color, and/or weight are reserved within reasonable limits, especially for new constructions and special designs. We are entitled to subcontract.
3. The customer's order of the goods constitutes a binding offer to conclude a contract. Unless the order indicates otherwise, we are entitled to accept this offer within 2 weeks of receipt by sending an order confirmation or by sending the ordered products within the same period.
4. We reserve all our proprietary, copyright, and other protective rights to all catalogs, technical documentation, drawings, plans, illustrations, calculations, offers, as well as other documents, samples, models, tools, and other objects provided by us. The customer may not make these accessible to third parties either as such or in content without our written consent, nor pass them on to third parties, nor use or reproduce them themselves or through third parties, regardless of whether we have designated them as confidential or binding. On our request, the customer must return these objects to us in full and destroy any copies made if they are no longer required by him in the regular course of business or if negotiations do not lead to the conclusion of a contract.
III. Prices and Payment Conditions
1. Unless agreed otherwise or specified in the order confirmation, our current list prices from the factory apply without packaging at the time of contract conclusion. Our prices are subject to the applicable statutory value-added tax (which we will separately indicate in the invoice) and packaging.
2. Our prices are valid for one month from the date of contract conclusion, unless otherwise agreed explicitly. For contracts with a delivery period of more than four months or for continuous obligations lasting longer than four months, we reserve the right to pass on any cost increases that occur during the procurement/delivery process, including price increases resulting from changes in the law, to the customer to the corresponding extent.
3. If the customer wishes for the goods to be shipped (a contract of sale involving the shipment of goods, cf. § 4 (1)), the customer shall bear the transport costs from the factory and the costs of any transport insurance requested by the customer. The customer shall also bear any customs duties, fees, taxes, and other public charges.
4. The invoice amount shall be due and payable in full without deduction within 14 days of receipt of the invoice, unless otherwise specified in the order confirmation. Payment shall only be deemed to have been made when we are able to dispose of the amount. We reserve the right to accept checks on a case-by-case basis, but generally only for fulfillment purposes. We do not guarantee timely collection or timely protest. In the case of check payments, payment shall be deemed to have been made only when the check is honored. We have eight days after receipt to honor the check.
5. In the course of ongoing business relationships, we reserve the right to make deliveries fully or partially only against advance payment. This reservation shall be made no later than with the order confirmation. If the customer is in default of payment for a previous delivery, we are entitled to withhold deliveries without being obliged to compensate for any damages.
6. If the customer is in default of payment, we are entitled to charge interest from the time of default at the applicable statutory default interest rate, but at least 9 percentage points above the respective base interest rate of the European Central Bank (ECB). We reserve the right to claim higher damages. Our claim for commercial default interest (§ 353 HGB) against merchants remains unaffected.
7. In the event that a check is not honored on time or a significant deterioration of the customer's financial position occurs or threatens to occur, we are entitled to demand immediate payment of the entire amount due, even if checks have been issued. If the customer cancels an order for which production has already begun, we reserve the right to charge for the goods commensurate with the stage of production. If, after the conclusion of the contract, it becomes apparent (e.g., through an application for the opening of insolvency proceedings) that our claim to the purchase price is at risk due to the customer's lack of solvency, we are entitled, in accordance with the statutory provisions, to refuse performance and, if necessary, to withdraw from the contract (§ 321 BGB).
8. The customer is only entitled to set-off, even if complaints or counterclaims are made, if the counterclaims have been legally established, recognized by us or undisputed. The customer is only authorized to exercise a right of retention if their counterclaim is based on the same contractual relationship.
IV. Delivery and performance time, default
1. Delivery dates or deadlines that have not been expressly agreed as binding are exclusively non-binding information. The delivery time specified by us only begins once technical issues have been clarified. Similarly, the customer must fulfill all obligations incumbent upon them in a proper and timely manner. If, in the case of call-off or scheduled orders, only part of the agreed quantity is taken within the agreed period, we will generally demand the total purchase price in exchange for the complete delivery of the ordered goods.
2. If we are in default with a binding deadline, the customer must grant us a reasonable grace period - starting from the day on which the written notice of default is received by us or, in the case of a deadline specified in calendar terms, from the expiry of the deadline - in writing. If this grace period elapses fruitlessly, the customer is entitled to withdraw from the contract. The customer's claims for default of delivery are governed by clause VII; otherwise, the statutory provisions apply.
3. Further liability for default of delivery attributable to us is excluded. The customer's further statutory claims and rights, which exist in addition to the claim for damages due to default of delivery attributable to us, remain unaffected.
4. If binding delivery deadlines cannot be met for reasons that are not our responsibility (unavailability of the service, delay in the delivery of the ordered and necessary materials due to warlike events in supplier countries, embargo or pandemic-related reasons or similar), we will immediately inform the customer of this and at the same time communicate the expected new delivery deadline. If the service is not available within the new delivery deadline, both parties are entitled to withdraw from the contract in whole or in part, depending on the stage of performance; we will immediately reimburse any consideration already provided by the customer without us having performed. In particular, failure to provide the service on time by our supplier shall be deemed to be a case of unavailability of the service within the meaning of this provision, if we have concluded a congruent cover transaction, neither we nor our supplier are at fault, or we are not obliged to procure the goods in the individual case.
5. The occurrence of our delivery delay is determined by legal regulations. A reminder by the customer is always required.
6. The customer's rights according to §8 of these terms and conditions and our legal rights, in particular in the event of exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.
7. We are entitled to partial deliveries and partial performances at any time.
8. If the customer is in default of acceptance, we are entitled to demand compensation for the resulting damage and any additional expenses. The same applies if the customer culpably breaches his or her duty to cooperate. With the occurrence of the acceptance or debtor delay, the risk of accidental deterioration and accidental loss passes to the customer.
9. Unless otherwise agreed, delivery shall be made ex works, where the place of performance for delivery and any subsequent performance is also located. Upon the customer's request and at the customer's expense, the goods shall be shipped to another place of destination (sale by dispatch) and insured. Unless otherwise agreed, we are entitled to determine the type of dispatch (in particular transport companies, shipping route, packaging) ourselves.
10. If our performance requires acceptance under statutory provisions or on the basis of an expressly applicable contractual agreement, the following shall apply: our performance shall be deemed accepted at the latest if and to the extent that
(a) the goods produced or processed by us are sold or made available for use by the customer to a third party after delivery, or
(b) the goods produced or processed by us are processed, mixed or connected with other goods with the customer's approval, or
(c) the goods produced or processed by us are used by the customer or third parties with the customer's approval beyond a trial period, or
(d) the performance is accepted by the customer's purchaser.
An earlier acceptance deadline resulting from statutory provisions or individual agreements shall remain unaffected. Acceptance must be carried out immediately on the acceptance date, or alternatively, after the notification of readiness for acceptance. The customer may not refuse acceptance in the event of a non-material defect.11. Confirmation of Arrival For deliveries to an EU member state outside of Germany, the customer must provide confirmation of arrival in accordance with the requirements of § 17a of the German VAT implementation regulation (UStDV) in its currently valid version, confirming that the goods have arrived in the rest of the Community. The confirmation of arrival must be signed by hand or transmitted electronically.
V. Transfer of risk/shipping/packaging
1. The risk of accidental loss and deterioration of the goods, including for sample deliveries, passes to the buyer at the latest upon delivery. In the case of a sale involving shipment, the risk of accidental loss and deterioration of the goods, as well as the risk of delay, passes to the carrier, freight forwarder or other person or entity designated to carry out the shipment upon delivery of the goods. If acceptance has been agreed upon, it is decisive for the transfer of risk. The statutory provisions of contract law for work contracts also apply to agreed-upon acceptance. If the buyer is in default of acceptance, this is equivalent to delivery or acceptance.
2. Loading and shipment are uninsured and at the customer's risk. We will make every effort to consider the customer's wishes and interests regarding the method and route of shipment, but any additional costs - even for agreed-upon free delivery - are borne by the customer.
3. We do not take back transport and other packaging in accordance with the Packaging Ordinance. The customer is responsible for disposing of the packaging at their own expense.
4. If shipping is delayed at the customer's request or fault, we will store the goods at the customer's expense and risk. In this case, notification of readiness for shipment is equivalent to shipment.
5. At the customer's request and expense, we will secure the delivery with transport insurance.
VI. Warranty/Guarantee
1. The statutory provisions shall apply to the customer's rights in case of defects and legal defects, unless otherwise provided below.
2. The customer's claims for defects exist only if the customer has properly fulfilled his obligation to inspect and give notice of defects as required under § 377 HGB, unless the defect was fraudulently concealed. Contrary to § 438 (1) no. 3 BGB or § 634a (1) no. 3 BGB, the general limitation period for claims arising from defects and legal defects is one year from the transfer of risk.
3. If, despite all due care, the delivered goods have a defect that existed at the time of the transfer of risk, we will, subject to timely notice of defects, either remedy the defect or deliver replacement goods at our discretion. We must always be given the opportunity to remedy the defect within a reasonable period of time. Claims for recourse remain unaffected by the above regulation. If the attempt at subsequent performance fails, the customer may, at his discretion, demand a reduction in the price or rescission of the contract, without prejudice to any claims for damages. The attempt at subsequent performance shall be deemed to have failed after the second unsuccessful attempt, unless the nature of the item or defect or other circumstances indicate otherwise.
4. Claims for defects do not exist in the case of only insignificant deviations from the agreed quality, only insignificant impairment of usability, natural wear and tear or damage that arises after the transfer of risk due to faulty or negligent handling, excessive use, unsuitable operating materials or due to special external influences that were not assumed under the contract.
5. If repair work or modifications are carried out improperly by the customer or third parties, there are also no claims for defects for these and the resulting consequences.
6. The customer's claims for necessary expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, are excluded to the extent that the expenses increase because the goods delivered by us are subsequently taken to a location other than the customer's branch, unless the transportation corresponds to their intended use.
7. The customer's recourse claims against us only exist to the extent that the customer has not made any agreements with its buyer that go beyond the legally mandatory warranty claims. Furthermore, paragraph 6 shall apply accordingly to the extent of the customer's recourse claim against the supplier. Claims for damages due to a defect shall be determined according to VII, and otherwise according to the statutory provisions.
8. We are entitled to make the owed subsequent performance dependent on the customer paying the due purchase price. However, the customer is entitled to withhold a proportionate part of the purchase price in relation to the defect. The subsequent performance does not include the removal of the defective item nor the reinstallation if we were not originally obligated to install it.
9. The customer must provide us with the necessary time and opportunity for the owed subsequent performance, in particular by handing over the contested goods for testing purposes. In the case of replacement delivery, the customer must return the defective item to us in accordance with the statutory provisions.
VII. Liability
1. Unless otherwise stated in these terms and conditions, including the following provisions, we are liable for a breach of contractual and non-contractual obligations in accordance with statutory provisions.
2. We are liable for damages – regardless of the legal grounds – within the scope of fault-based liability for intentional and grossly negligent conduct.
3. In the case of ordinary negligence, we shall be liable, subject to a less strict liability standard according to statutory provisions (e.g. for care in our own affairs), only for damages arising from the breach of life, body or health or from a significant breach of a material contractual obligation (an obligation whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the contracting party can regularly rely and trust); in this case, however, our liability is limited to the foreseeable, typically occurring damages.
4. The liability limitations arising from these regulations, particularly under 3., also apply in the event of a breach of duty by or in favour of persons whose fault we are responsible for according to statutory provisions. They do not apply in cases where we have fraudulently concealed a defect or provided a warranty for the quality of the goods, or in cases of claims by the customer under the Product Liability Act.
5. In the case of a breach of duty that does not constitute a defect, the customer may only withdraw or terminate the contract if we are responsible for the breach. Otherwise, the legal requirements and consequences apply.
VIII. Retention of Title
1. Until all claims, including all current and future balance claims from current accounts, which we have against the customer, have been fulfilled, the delivered goods (reserved goods) remain our property. In case of the customer's contractual breach, such as default of payment, we have the right to reclaim the reserved goods after setting an appropriate deadline. Reclaiming the reserved goods constitutes a withdrawal from the contract. If the customer returns the reserved goods, this is also a withdrawal from the contract. We are entitled to dispose of the reserved goods after reclamation. After deducting a reasonable amount for the costs of disposal, the proceeds from disposal are to be offset against the amounts owed to us.
2. The customer must handle the reserved goods with care and adequately insure them against fire and theft at his own expense up to the new value. Maintenance and inspection work that was necessary must be carried out by the customer in a timely manner at his own expense.
3. The customer is entitled to resell and/or use the reserved goods properly in the course of business as long as he is not in default of payment. Pledges or transfers of ownership for security purposes are not permitted. The customer hereby assigns to us all claims (including all current and future balance claims from current accounts) arising from the resale or any other legal basis (insurance, tort) regarding the reserved goods as security in full; we hereby accept the assignment. We authorize the customer to collect the assigned claims on our behalf in his own name, subject to revocation at any time if the customer does not fulfill his payment obligations properly. The customer is not authorized to assign these claims for the purpose of factoring unless the obligation of the factor to effect the consideration in the amount of the claims directly to us as long as claims against the customer exist is established at the same time.
4. Processing or transformation of the reserved goods by the customer is always carried out on our behalf. If the reserved goods are processed together with other items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the reserved goods (invoice amount including value-added tax) compared to the other processing items at the time of processing. The same applies to the new item resulting from processing. In the case of the inseparable mixing of the reserved goods with other items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the reserved goods (invoice amount including value-added tax) compared to the other mixed items at the time of mixing. If the customer's item is to be regarded as the main item as a result of mixing, the customer and we agree that the customer transfers co-ownership of this item to us in proportion to our co-ownership; we hereby accept the transfer. The customer shall keep our sole or co-ownership of an item created in this way for us.
5. In case of third-party access to the reserved goods, particularly seizures, the customer must notify us immediately and point out our ownership so that we can assert our ownership rights. If the third party is unable to reimburse us for the judicial or extrajudicial costs incurred in this context, the customer shall be liable for this.
6. We are obligated to release the securities to which we are entitled to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%, with the selection of the securities to be released being our responsibility.
IX. Place of performance, jurisdiction, applicable law
1. The place of performance and jurisdiction for deliveries and payments (including check and bill of exchange claims) as well as all disputes arising between us and the customer from the purchase agreements concluded between them and us is our place of business, Kernen im Remstal, or the competent courts for this location. However, we are also entitled to sue the customer at their place of residence and/or business. Mandatory legal provisions, in particular regarding exclusive jurisdictions, remain unaffected.
2. The relationship between the contracting parties is governed exclusively by the law in force in the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.