General business and sales conditions of the company FMG Förderelemente Mecklenburg GmbH

§ 1. General

(1) The following terms and conditions of sale and delivery apply exclusively to all deliveries and other services; they only apply if the buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.

(2) Deviating, conflicting or supplementary general terms and conditions of the buyer only become part of the contract if and to the extent that the seller has expressly agreed to their validity. This requirement of consent applies in any case, for example even if the seller makes the delivery to the buyer without reservation in the knowledge of his general terms and conditions.

(3) Individual agreements made with the buyer on a case-by-case basis (including side agreements, additions and changes) always take precedence over these General Terms and Conditions.

(4) References to the validity of statutory provisions are only used for clarification purposes. Even without such a clarification, these apply unless they are changed or expressly excluded in these terms and conditions.

§ 2 Conclusion of contract

(1) Contract offers by the seller are subject to change and non-binding. This also applies if catalogs, technical documentation or other product descriptions or documents - also in electronic form - have been handed over to the buyer. The seller reserves the property rights and copyrights to such documents.

(2) The order of the goods by the buyer is considered a binding contract offer, which can be accepted by the seller by confirming the order or by delivering the goods to the buyer.

(3) The documents on which the offer or the order confirmation is based, such as images, drawings, dimensions and weights, are generally only to be understood as approximate values, unless they are expressly designated as binding.

§ 3 prices, terms of payment, default in payment

(1) Unless otherwise agreed in individual cases, the prices apply ex warehouse plus statutory sales tax and excluding packaging and other shipping and transport costs. The packaging will be charged at cost and will only be taken back if the seller is obliged to do so by virtue of mandatory statutory provisions. Any customs duties, fees, taxes and other public charges are borne by the buyer.

(2) If there are more than 4 months between the conclusion of the contract and delivery without the seller being responsible for a delay in delivery, the seller can lower the price, taking into account any increases in material, wage and other ancillary costs that are to be borne by the seller , increase appropriately. If the purchase price increases by more than 40%, the buyer is entitled to withdraw from the contract.

(3) If the seller takes the buyer's requests for changes into account, the buyer bears the resulting additional costs.

(4) The purchase price is due and payable, unless otherwise agreed, within 14 days of receipt of the consideration and receipt of the invoice. The place of performance for payment of the purchase price is the registered office of the seller.

(5) When the above payment period has expired, the buyer is in default. During the period of default, interest is charged on the purchase price at the applicable default interest rate; that is currently 9 percentage points above the respective base rate. In addition, there is a lump sum for damage caused by default of 40 euros. The seller reserves the right to assert further damage caused by default, taking into account the flat-rate damage caused by default.

§ 4 Offsetting, right of retention

Offsetting and the assertion of a right of retention on the part of the buyer are excluded, unless the counterclaim on which the offsetting or the right of retention is based is undisputed or legally established. In the event of defects in the delivery, the buyer's counter-rights, in particular in accordance with Section 8 of these General Terms and Conditions, remain unaffected.

§ 5 Delivery Period, Delay in Delivery

(1) The specification of a delivery time is made to the best of our judgment when the order is accepted. The delivery time is only binding if it is expressly designated as binding.

(2) The delivery period is extended appropriately if the buyer, on his part, delays or neglects any necessary or agreed cooperation. Changes to the delivered goods initiated by the buyer also lead to a reasonable extension of the delivery period.

(3) If the seller does not meet binding delivery deadlines for reasons for which he is not responsible, he will inform the buyer immediately and at the same time notify the expected new delivery deadline. If the service is also not available within the new delivery period, the seller is entitled to withdraw from the contract in whole or in part; any consideration already paid by the buyer is to be reimbursed immediately. A case of unavailability of the service applies in particular to the non-timely delivery by subcontractors, if neither the seller nor the subcontractor is at fault or the seller is not obliged to procure in individual cases.

(4) The occurrence of the delay in delivery is determined in accordance with the statutory provisions. In any case, a reminder is required from the buyer. If the seller is in default of delivery, the buyer can demand a lump sum for default damages, this for each completed calendar week in the amount of 0,5% of the net price, but no more than 5% of the delivery value of the delayed goods. The seller reserves the right to prove that the buyer suffered either no damage or less damage than the flat rate.

(5) The rights of the buyer according to § 9 of these terms and conditions and the legal rights of the seller, in particular in the case of an exclusion of the obligation to perform, especially in the event of impossibility or unreasonableness of performance, remain unaffected.

§ 6 Delivery, Passing of Risk, Acceptance, Default of Acceptance

(1) Delivery takes place from the seller's warehouse, which is also the place of performance. At the request and expense of the buyer, the goods will be sent to a different destination. Unless otherwise agreed, the seller is entitled to determine the type of shipment, in particular the transport company, shipping route, packaging himself.

(2) The seller is entitled to make partial deliveries to a reasonable extent.

(3) The risk of accidental loss and accidental deterioration of the goods is transferred to the buyer at the latest when the goods are handed over. In the case of sales by mail order, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay are transferred to the forwarding agent, carrier or other sender when the goods are delivered. If acceptance has been agreed, this is the relevant point in time for the transfer of risk. In addition, the statutory provisions for the law on contracts for work and services apply accordingly to an agreed acceptance. The handover or acceptance is the same if the buyer is in default of acceptance.

(4) If the buyer is in default of acceptance, if he fails to cooperate or if the delivery is delayed for other reasons for which the buyer is responsible, the seller is entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). In addition, the seller is entitled to other statutory claims.

§ 7 retention of title

(1) The seller retains ownership of the purchased and delivered goods until all current and future claims from the purchase contract and an ongoing business relationship have been paid in full.

(2) The buyer is not authorized to pledge the goods subject to retention of title to third parties or to transfer them as security, but is entitled to resell the goods subject to retention of title in the normal course of business. As a precaution, the buyer hereby assigns to the seller the claims arising from this against his business partners. The seller accepts the assignment. The buyer is revocably authorized to collect the claims assigned to the seller for his account in his own name.

(3) If the buyer acts contrary to the contract, in particular if the purchase price is not paid, the seller is entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of retention of title and withdrawal. If the buyer does not pay the purchase price, the seller may only assert these rights if he has previously unsuccessfully set the buyer a reasonable deadline for payment or if such a deadline is dispensable according to the statutory provisions.

(4) The retention of title extends to the full value of the products resulting from processing, mixing or combining the goods. If the property of third parties remains after processing, mixing or combining with goods of third parties, the seller acquires co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.

(5) If the value of all securities existing for the seller exceeds the existing claims by more than 10%, the seller will release securities at the option of the seller at the buyer's request.

§ 8 Claims for Defects

(1) The buyer's claims for defects require that he has complied with his statutory inspection and notification obligations (Section 377 of the German Commercial Code). If a defect becomes apparent during the inspection or later, the seller must immediately notify the buyer in writing. A notification is immediate if it is made within two weeks, whereby the timely dispatch of the notification is sufficient to meet the deadline. Irrespective of this duty to examine and notify, the buyer must report obvious defects in writing within two weeks of delivery; Here, too, timely dispatch of the notification is sufficient to meet the deadline. If the buyer fails to properly examine and / or report defects, the seller's liability for the defect that has not been reported is excluded.

(2) If the delivered item is defective, the buyer can demand supplementary performance in the form of subsequent improvement or replacement delivery. The seller can refuse the type of supplementary performance chosen by the buyer in accordance with Section 439 (3) of the German Civil Code (BGB). If the buyer has not made a decision on the form of supplementary performance, the right to choose shall pass to the seller after a 14-day period has elapsed. The seller can make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to withhold a proportionately reasonable part of the purchase price.

(3) The buyer must give the seller the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the case of a replacement delivery, the buyer must return the defective item to the seller in accordance with the statutory provisions. The supplementary performance does not include either the removal of the defective item or the reinstallation if the seller was not originally obliged to install it.

(4) The seller bears the expenses necessary for the purpose of the inspection and subsequent performance, in particular transport, travel, labor and material costs, unless the request for the removal of the defect turns out to be unjustified. In this case the costs are to be reimbursed by the buyer.

(5) Only in urgent cases, for example when operational safety is at risk or to prevent disproportionate damage, does the buyer have the right to remedy the defect himself and to demand reimbursement of the objectively necessary expenses from the seller. The buyer has to inform the seller immediately, if possible in advance, of such a self-implementation. There is no right to self-improvement if the seller would be entitled to refuse a corresponding supplementary performance according to the statutory provisions.

(6) If the supplementary performance fails or the unsuccessful expiry of a reasonable deadline set by the buyer for the supplementary performance or if the setting of a deadline is dispensable according to the statutory provisions, the buyer can choose to reduce the purchase price or withdraw from the contract. The right of withdrawal is excluded in the event of an insignificant defect.

(7) Further claims of the buyer, insofar as these do not result from the assumption of a guarantee, only exist if they result from these terms and conditions and are otherwise excluded.

(8) Claims based on defects become statute-barred, insofar as this is permissible, one year after delivery of the purchased item, otherwise within the statutory limitation period. If an acceptance has been agreed, the statute of limitations begins with the acceptance.

§ 9 Other liability (restrictions)

(1) The seller's liability for damages is limited to intent and gross negligence. In the case of simple negligence, the seller is only liable for damage resulting from injury to life, limb or health and for damage resulting from the breach of an essential contractual obligation. An obligation is essential if its fulfillment enables the contract to be carried out in the first place and the contractual partner regularly trusts and may rely on compliance with it. In this case the liability is limited to the replacement of the foreseeable, typically occurring damage.

(2) The limitations of liability resulting from paragraph 1 do not apply if the seller has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods. This also applies to the buyer's claims under the Product Liability Act.

(3) Due to a breach of duty that does not consist of a defect, the buyer can only withdraw or terminate the contract if the seller is responsible for this.

§ 10 Choice of law, place of jurisdiction, severability clause

(1) The inclusion and interpretation of these terms and conditions of sale and delivery, as well as the conclusion and interpretation of legal transactions with the buyer himself, are governed exclusively by the law of the Federal Republic of Germany. The application of uniform international law, in particular the UN sales law, is excluded.

(2) The place of jurisdiction is the place of jurisdiction for the registered office of the seller, insofar as the buyer is a merchant. The seller is also entitled to sue before a court which is responsible for the seat or a branch of the buyer.

(3) The ineffectiveness of individual provisions of this contract or its components does not affect the effectiveness of the remaining provisions. The contracting parties are obliged to replace an ineffective provision in good faith within the framework of what is reasonable with an effective provision that is equivalent to its economic success, provided that this does not result in a significant change in the content of the contract; the same applies if a matter that requires regulation is not expressly regulated.