1. Validity of the terms and conditions

1.1 Deliveries, services and offers on our part as a contractor are made exclusively on the basis of these terms and conditions. They apply to all deliveries to entrepreneurs and legal entities under public law and special funds under public law. Entrepreneurs within the meaning of the terms and conditions are natural or legal persons or legal partnerships with whom a business relationship is entered into, who act in the exercise of a commercial or independent professional activity. The conditions also apply to future business relationships, even if they are not expressly agreed again. Terms and conditions of the contractual partner as the client are hereby expressly rejected. In particular, such conditions of the client do not bind the contractor if the contractor does not expressly contradict them again despite the conclusion of a contract.
1.2 To the extent that separate agreements in the contracts deviate from the present conditions, the separate agreements take precedence over those of the delivery conditions.

2. Subcontractors

The contractor is entitled to have all or part of the services commissioned by the client made by subcontractors.

3. Prices

Unless otherwise agreed, the contractor’s prices are ex works including customary packaging. Statutory value added tax is not included in the contractor’s prices. The statutory value added tax applicable at the time of performance will be charged additionally.​

4. delivery

4.1 Delivery and service deadlines are generally based on a written agreement.
4.2 Cases of force majeure and other unforeseeable, exceptional circumstances that are not at fault, e.g. The contractor is not responsible for operational disruptions, strikes, lockouts, official orders, unfavorable weather / traffic conditions, etc., even if they occur at sub-suppliers. They entitle the contractor to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time. If the delivery or service becomes impossible due to the circumstances mentioned, the contractor shall be released from the service obligation. If the delay lasts longer than 2 months, the client is entitled to withdraw from the contract. If the delivery time is extended for the reasons mentioned above or if the contractor is released from the delivery obligation as a result, the client cannot derive any claims for damages from this. The contractor can only invoke the circumstances mentioned if he notifies the client immediately.
4.3 If the contractor is in default of delivery, the customer’s claim for compensation for any damage caused by default is limited to a maximum of 5% of the total invoice amount. Any further claims for damage caused by delay are excluded, unless the delay is due to gross negligence or intent on the part of the contractor or his vicarious agents or results in injury to life, body or health. The other rights of the client in the event of default remain unaffected.
4.4 The voluntary return of goods takes place only after prior agreement with the contractor, without the latter being obliged to do so. If goods are voluntarily taken back, they must be in perfect condition and in their original packaging. In the event of a voluntary return, the invoice amount will be credited minus 20%, unless otherwise expressly agreed. The client bears the costs of the return freight, if applicable.​

5. Payments

5.1 Claims from invoices are due for payment immediately without deduction, unless otherwise agreed. If acceptance is necessary, the due date occurs after acceptance or after the occurrence of circumstances equivalent to acceptance.
5.2 Checks are only accepted by express agreement, where they are only accepted on account of performance. Checks are only considered payment after they have been cashed.
5.3 The client is only entitled to offset counterclaims if these are undisputed or have been legally established.
5.4 A retention by the client is only entitled if the counterclaims are undisputed or have been legally established.​

6. Guarantee

6.1 The orders are carried out within the framework of the technically necessary, material and process-related tolerances in commercial quality. Samples always only represent the average type and quality of the service, unless they have been separately agreed as binding.
6.2 If the delivery item is defective, the contractor can choose to either deliver a replacement or a repair. Multiple repairs are permitted. The client must give the contractor the opportunity to make improvements.
6.3 Defects in parts of the delivery do not entitle to complain about the entire delivery.
6.4 If the subsequent performance fails after a reasonable period of time, the client can choose to either demand a reduction in the purchase price or withdraw from the contract.
6.5 Warranty claims against the contractor are only available directly to the client and are not transferable.
6.6 Item 7 applies accordingly to claims for damages in connection with the statutory warranty.
6.7 The limitation period for claims for defects is two years from delivery of the goods.
6.8 Illuminants are excluded from the guarantee.​

7. liability

7.1 The contractor is fundamentally liable in accordance with the statutory provisions. In the event of a simple negligent breach of essential contractual obligations, the contractor’s liability is limited to the replacement of typical, foreseeable damage. In the event of a negligent breach of non-essential contractual obligations, the contractor’s liability is excluded. An essential contractual obligation is an obligation, the fulfillment of which is to be guaranteed according to the content and purpose of the contract, or an obligation that enables the proper execution of the contract in the first place and on whose compliance the contractual partner can regularly rely.
7.2 The above limitation of liability does not apply in the event of injury to life, body or health attributable to the contractor. Any liability on the part of the contractor due to the assumption of a guarantee or product liability that is too secured also remains unaffected.
7.3 The aforementioned limitations of liability apply mutatis mutandis in favor of employees, employees, agents or other vicarious agents or vicarious agents of the contractor.
7.4 The above limitations of liability also apply insofar as reimbursement of useless expenses is requested instead of the claim for compensation for damage instead of performance.
7.5. In the case of liability for compensation for any damage due to delay in performance, No. 4.3.​

8. Retention of title

8.1 The delivered goods remain the property of the contractor until the purchase price has been paid in full, or until redemption in the case of payment by check. If the client is an entrepreneur, the goods remain the property of the contractor until all claims to which the contractor is entitled from the business relationship with the client have been met.
8.2 Goods to which the contractor has property rights are hereinafter referred to as reserved goods. If the client is an entrepreneur, the processing of the reserved goods takes place for the contractor as the manufacturer, but without any obligation for him. The contractor acquires co-ownership of the item resulting from the treatment or processing in the ratio of the invoice value of the goods subject to retention of title to the value of the new item at the time of the treatment or processing. If the (joint) ownership of the contractor is canceled by connection, it is already agreed that the contractor’s (joint) ownership of the uniform item is transferred to the contractor in proportion to the invoice value. The client will keep the (co) property of the contractor free of charge.
8.3 The customer is entitled to sell or process the reserved goods in the ordinary course of business, as long as he is not in default of payment or has agreed with his customer to exclude the transferability of the claims acquired by the customer. Pledges or collateral assignments are inadmissible. As a precaution, the client hereby assigns to the contractor in full the claims arising from the resale or any other legal reason (e.g. insurance benefits, claims from tort) with regard to the reserved goods. The contractor hereby accepts the assignment.
8.4 If the value of the collateral existing for the contractor exceeds the contractor’s claim by more than 20%, the contractor is obliged to release collateral at his option.
8.5 In the event of access to the reserved goods or seizure by third parties, the client will point out the ownership of the contractor and notify the contractor immediately.
8.6 In the event of breach of contract by the client, in particular default in payment, the contractor is entitled to take back the goods after a reminder. If the client is an entrepreneur, the contractor can also demand the assignment of the client’s claims for surrender against third parties. In this case, at the request of the contractor, the client has to pay incoming payments on assigned claims to a separate escrow account set up for the contractor. Upon request by the contractor, the client is obliged to separate property of the contractor marked as such. If the client is an entrepreneur, taking back or seizing the reserved goods does not constitute a withdrawal from the contract.
8.7 The client is obliged to treat the reserved goods with care; in particular, he is obliged to insure them adequately at replacement value at his own expense against fire, water and theft damage.​

9. Applicable Law and Jurisdiction

9.1 The contract concluded with the client as well as these general terms and conditions and all rights and obligations resulting therefrom are subject to German law. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 does not apply.
9.2 As far as the client is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, Hamburg is the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. In addition, the contractor is entitled to sue at the principal’s place of business.

Status: 05/2011

Download as PDF file: AGBs Max Franke (PDF)