General Terms and Conditions
item Industrietechnik GmbH
Issued: June 2018
§ 1 Scope, form
(1) These General Terms and Conditions of Business (“GTC”) apply to all our business relations with our customers (“Buyer”). The GTC shall only apply if the Buyer is an entrepreneur, a legal entity under public law or a municipal contracting body.
(2) The GTC apply in particular to contracts for the sale and/or delivery of movable goods (“goods”), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers. Unless otherwise agreed, the GTC in the version valid at the time of the Buyer's order or at least in the version last notified to him in text form shall also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.
(3) Our GTC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement of consent applies in any case, for example even if we make the delivery to the Buyer without reservation in knowledge of the Buyer's terms and conditions.
(4) Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments), in particular certain warranties of characteristics or recommendations for the use of our goods as well as information on the duration and periods for repairs, require the express written confirmation of our head office or our respective competent branch office in order to be legally effective. Our sales representatives are authorised to place orders. An order is only considered accepted when it is confirmed in writing by our company. Such individual agreements have priority over these GTC in any case.
(5) Legally relevant declarations and notifications of the Buyer with regard to the contract (e.g. setting of a deadline, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further evidence, in particular in cases of doubt as to the declarant's legitimacy, shall remain unaffected.
(6) References to the validity of statutory provisions have only a clarifying meaning. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these GTC.
§ 2 Conclusion of contract
(1) Our offers are subject to change and non-binding. This also applies if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, reference to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve ownership rights and copyrights; they may not be reproduced and made accessible to third parties without our express consent in writing.
(2) The order of the goods by the Buyer is considered a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within two (2) weeks after its receipt by us. An order must reach a minimum order value of EUR 50.00, with the exception of orders via the item online shop. Orders are generally binding. Defect-free goods delivered will only be taken back by item in exceptional cases for reasons of goodwill and after separate agreement in individual cases. In this case we charge 20 % of the net sales price for profiles and 10 % for accessories. We do not take back goods which have been cut and assembled.
(3) Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.
§ 3 Delivery period and delay in delivery
(1) Specified delivery and unloading times are always non-binding unless otherwise expressly agreed in writing. The beginning of the delivery period presupposes receipt of all documents to be supplied by the Buyer, such as necessary approvals, releases, clarification and approval of the plans, compliance with the agreed terms of payment and other obligations as well as agreement on all technical issues, the clarification of which the parties reserved the right to at the conclusion of the contract. If these conditions are not fulfilled in time, the delivery time will be extended accordingly.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of goods / services), we will inform the Buyer of this without delay and at the same time communicate the expected new delivery deadline. If the goods / services are also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already rendered by the Buyer. Non-availability of the goods / services in this sense shall mean non-timely self-supply by our supplier if we have concluded a matching cover transaction, if we or our supplier are neither at fault or if we are not obliged to procure the goods in individual cases.
(3) The occurrence of our delay in delivery is determined in accordance with the statutory provisions. In any case, however, a reminder by the Buyer is required. If we are in default of delivery, the Buyer can demand lump-sum compensation for the damage caused by the delay. The lump sum for damages amounts to 0.5 % of the net price (delivery value) for each completed calendar week of the delay, however, a maximum of 5 % of the delivery value of the goods delivered late. We reserve the right to prove that the Buyer has not suffered any damage at all or only considerably less damage than the above lump sum.
(4) The rights of the Buyer according to § 8 of these GTC and our legal rights, in particular in case of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of the performance and/or subsequent performance), remain unaffected.
§ 4 Delivery, passing of risk, acceptance, default of acceptance
(1) Delivery shall be ex warehouse, where the place of performance for the delivery and any subsequent performance shall also be. At the request and expense of the Buyer, the goods will be shipped to another place of destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of dispatch (in particular forwarding company, dispatch route, packaging) ourselves. Transport insurance will only be taken out at the Buyer’s express request. Any costs arising from this shall be borne solely by the Buyer.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest upon handover. However, in the event of sale by delivery, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the Buyer already upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply accordingly to an agreed acceptance. Delivery and/or acceptance shall be deemed to have taken place if the Buyer is in default of acceptance.
(3) If the Buyer defaults in acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this we charge a lump-sum compensation of 0.5 % of the net price (delivery value) per calendar day, beginning with the delivery period or – in the absence of a delivery period – with the notification that the goods are ready for dispatch.
The proof of higher damages and our statutory claims (in particular compensation for additional expenses, appropriate compensation, termination) shall remain unaffected; however, the lump sum shall be set off against further monetary claims. The Buyer is entitled to prove that we have incurred no damage at all or only considerably less damage than the above lump sum.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value-added tax. These prices do not include installation, commissioning and assembly costs (see special assembly conditions) as well as packaging, freight, postage and insurance costs. They are calculated on the basis of the wages, material and other costs applicable on the day we submit our offer. Prices quoted in the online shop are calculated on the basis of the wage, material and other costs applicable on the day the product is discontinued. If additional or increased charges – in particular customs duties, levies, currency compensation – are incurred between conclusion of the contract and delivery due to changes in legal standards, we are entitled to increase the agreed purchase price accordingly. The same applies to examination fees.
(2) In the case of sale by delivery to a place other than the place of performance (acc. to. § 4 para. 1 this GTC), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
(3) Some of our services are subject to special legal regulations in Germany. Customs tariff numbers and tax rates are shown in our order confirmation, our delivery note and our invoice. With the acceptance of our order confirmation it is agreed that the legally defined invoicing requirements are given.
(4) The purchase price shall be due and payable, at the option of the Buyer, within 14 days from the date of invoice and delivery or acceptance in cash with 2 % discount or within 30 days without deduction. We reserve the right to deviating conditions (advance payment, third party payment, letter of credit, etc.) in individual cases. For deliveries abroad, we may demand the opening of an irrevocable and confirmed letter of credit, payable at a bank specified by us, or other equivalent securities. We send our invoices either by post or electronically by e-mail. However, even in the context of an ongoing business relationship, we are entitled at any time to make a delivery in whole or in part only against prepayment. We will declare a corresponding reservation not later than with the order confirmation.
(5) The Buyer shall be in default upon expiry of the above payment period. The purchase price shall bear interest at the statutory default interest rate applicable at the time of the default. We reserve the right to claim further damage caused by default. Our claim to commercial maturity interest shall remain unaffected vis-à-vis merchants.
(6) The Buyer is only entitled to set-off or retention rights to the extent that his claim is legally established or undisputed. In the event of defects in the delivery, the Buyer’s counter-rights remain unaffected.
(7) If it becomes apparent after conclusion of the contract (e.g. by filing for insolvency proceedings) that our claim to the purchase price is endangered by the Buyer's inability to pay, we are entitled to refuse performance and - if necessary after setting a deadline - to withdraw from the contract in accordance with the statutory provisions. In the case of contracts for the manufacture of specified items (custom-made products), we may immediately withdraw from the contract; the statutory provisions on the dispensability of setting a deadline remain unaffected.
§ 6 Retention of title
(1) We reserve title to the sold goods until all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Buyer must inform us immediately in writing if an application for the opening of insolvency proceedings is filed or if the goods belonging to us are seized by third parties (e.g. garnishment).
(3) If the Buyer acts in breach of contract, in particular if the purchase price due is not paid, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for surrender does not also include the declaration of withdrawal; we are rather entitled to merely demand the surrender of the goods and to reserve the right to withdraw from the contract. If the Buyer does not pay the purchase price due, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment without success or such a deadline is unnecessary in accordance with the statutory provisions.
(4) Until revoked in accordance with (c) below, the Buyer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title extends to the full value of the products resulting from the processing, mixing or combination of our goods, whereby we are deemed to be the manufacturer. If the property rights of third parties remain in force in the event of processing, mixing or combination with goods, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same applies to the resulting product as to the goods delivered under retention of title.
(b) The Buyer hereby assigns to us as security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The obligations of the Buyer mentioned in para. 2 shall also apply in consideration of the assigned claims.
(c) The Buyer remains authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer fulfils his payment obligations to us, if there is no defect in his Performance, and if we do not assert the retention of title by exercising a right pursuant to para. 3. If this is the case, however, we can demand that the Buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the associated documents and informs the debtors (third parties) of the assignment. In this case, we are also entitled to revoke the Buyer's authority to further sell and process the goods subject to retention of title.
(d) Insofar as more than 125 % of our claims are secured without any doubt by the assignments or reservations declared above, the surplus of the receivables or the goods subject to retention of title shall be released at the request of the Buyer at our discretion.
§ 7 Claims for defects of the Buyer
(1) The statutory provisions shall apply to the rights of the Buyer in the event of material defects and defects of title (including incorrect and short deliveries as well as improper assembly or defective assembly instructions), unless otherwise specified below. In all cases, the statutory special regulations remain unaffected when the goods are finally delivered to a consumer.
(2) The basis of our liability for defects is above all the agreement made on the quality of the goods. All product descriptions which are the subject matter of the individual contract or which have been made public by us (in particular in catalogues or on our Internet homepage) are regarded as an agreement on the quality of the goods.
(3) Insofar as the quality has not been agreed, it must be assessed in accordance with the statutory provisions whether there is a defect or not. However, we accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
(4) The Buyer’s claims for defects presuppose that he has complied with his statutory inspection and notification obligations. If a defect appears during delivery, inspection or at any later point in time, this must be reported to us immediately in writing. In any case, obvious defects must be reported in writing within five (5) working days of delivery and defects not visible during the inspection within the same period from discovery. If the Buyer fails to carry out a proper inspection and/or report a defect, our liability for the defect not or not in time or not properly reported shall be excluded in accordance with the statutory provisions.
(5) If the delivered item is defective, we can first opt for subsequent performance by eliminating the defect (rectification) or by delivering an item free from defects (replacement delivery). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
(6) We are entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer is entitled to retain a proportionate part of the purchase price in relation to the defect.
(7) The Buyer must give us the time and opportunity necessary for the subsequent fulfilment owed, in particular to hand over the goods complained of for inspection purposes. In the event of a replacement delivery, the Buyer must return the defective item to us in accordance with the statutory provisions. The subsequent performance does not include the removal of the defective item nor the re-installation if we were not originally obliged to install it.
(8) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs (not: removal and installation costs), if there is actually a defect. Otherwise we can demand reimbursement from the Buyer for the costs arising from the unjustified request to remedy the defect (in particular testing and transport costs), unless the lack of defectiveness was not apparent to the Buyer.
(9) In urgent cases, e.g. when operational safety is at risk or to prevent disproportionate damage, the Buyer has the right to remedy the defect himself and to demand compensation from us for the expenses objectively required for this. We must be informed immediately, if possible in advance, of such self-remedy. The right of self-remedy shall not exist if we would be entitled to refuse subsequent performance in accordance with the statutory provisions.
(10) If the subsequent performance has failed or a reasonable period to be set by the Buyer for the subsequent performance has expired without success or is dispensable according to the statutory provisions, the Buyer can withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
(11) Claims of the Buyer for damages or reimbursement of futile expenditures exist also with defects only in accordance with § 8 and are otherwise excluded.
§ 8 Other liability
(1) Unless otherwise stipulated in these GTC, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) We shall be liable for damages – on whatever legal grounds – within the scope of liability for intent and gross negligence. In the case of simple negligence, we are liable, subject to a milder standard of liability, in accordance with statutory provisions (e.g. for diligence in our own affairs) only for
a) damages resulting from injury to life, body or health,
b) damages arising from a not insignificant breach of a material contractual obligation (obligation the fulfilment of which is essential for the proper performance of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from para. 2 shall also apply to breaches of duty by or in favour of persons whose fault we are responsible for in accordance with statutory provisions. They do not apply if we have fraudulently concealed a defect or assumed a guarantee for the quality of the goods and for claims of the Buyer under the Product Liability Act.
(4) The Buyer may only withdraw from the contract or terminate the contract due to a breach of duty which does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the Buyer shall be excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 9 Limitation of actions
(1) Deviating from the general statutory limitation period, the limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the limitation period begins with acceptance.
(2) However, if the goods are a building or an object which has been used for a building in accordance with its normal use and has caused its defectiveness (building material), the limitation period in accordance with the statutory provision is 5 years from delivery. Other special statutory regulations on the statute of limitations shall also remain unaffected.
(3) The above limitation periods of sales law also apply to contractual and non-contractual claims for damages of the Buyer, which are based on a defect of the goods, unless the application of the regular statutory limitation period would lead to a shorter limitation period in individual cases. Claims for damages of the Buyer according to § 8 para. 2 sentence 1 and sentence 2(a) as well as according to the product liability law however become time-barred exclusively after the legal limitation periods.
§ 10 Final provisions
(1) These GTC and the contractual relationship between us and the Buyer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the Buyer is a merchant, a legal entity under public law or a municipal contracting body, the exclusive (also international) place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered office in Solingen, Germany. However, in all cases we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTC or a prior individual agreement or at the general place of jurisdiction of the Buyer. Priority statutory provisions, in particular regarding exclusive responsibilities, remain unaffected.
(3) Transfer of the contractual rights and obligations to third parties by the Buyer is only possible with our written consent.
(4) The invalidity of individual provisions of these General Terms and Conditions of Sale shall not affect the validity of the remaining provisions. Invalid provisions shall be deemed to be replaced by such valid provisions that are suitable to achieve the economic purpose of the invalid provision as far as possible.