Audiotec Fischer GmbH General Terms and Conditions (for entrepreneurs)
Section 1 Scope and form
(1) These General Terms and Conditions (GTC) apply to all our business relationships with our customers ("purchasers"). These GTC apply only if the purchaser is an entrepreneur (section 14 of the German Civil Code), a legal person under public law or a special fund under public law.
(2) The GTC apply in particular to contracts for the sale and/or delivery of movable items ("goods"), regardless of whether we manufacture the goods ourselves or purchase them from suppliers (sections 433 and 651 of the German Civil Code). Unless otherwise agreed, the version of the GTC in force at the time when the purchaser places the order or the version most recently made available to the purchaser in text form applies as a blanket agreement for similar future contracts, without the need for us to refer to the GTC again in every individual case.
(3) Our GTC apply exclusively. If the purchaser has General Terms and Conditions that differ from, contradict or supplement these GTC, they will only become part of the contract if we have explicitly consented to this. This requirement for consent applies in every case, for example also in the event that we are aware of the purchaser's GTC and make a delivery to the purchaser without reservations.
(4) Specific agreements made with the purchaser in individual cases (including subsidiary agreements, supplements and amendments) take priority over these AGB in every case. A written contract or our written confirmation is required to determine the content of agreements of this kind, in the absence of proof to the contrary.
(5) Statements and reports made by the purchaser concerning the contract that are relevant in law (for example, relating to the setting of deadlines, the notification of faults, withdrawal from the contract or the reduction of the purchase price) must be submitted in written or text form (for example, letter, e-mail or fax). Statutory procedural requirements and other forms of proof, in particular in the event of doubts concerning the identity of the organisation making the statement, are unaffected.
(6) References to the application of statutory provisions are made only for the purposes of clarification. Therefore, the statutory provisions apply without any clarification of this kind, unless they are directly amended or explicitly excluded in these GTC.
Section 2 Concluding the contract
(1) Our quotations are subject to change and are not binding. This also applies to cost estimates, catalogues, technical documentation (for example, drawings, plans, calculations, costings, references to DIN standards), other product descriptions and documents, including those in electronic form, that we have supplied to the purchaser and that we retain ownership and copyright of.
(2) When the purchaser orders the goods, this is considered to be a binding offer of a contract. Unless otherwise stated in the order, we are entitled to accept this offer of a contract within 14 days of receiving it.
(3) This acceptance can be confirmed in writing (for example, in an order confirmation) or can take the form of the delivery of the goods to the purchaser.
Section 3 Delivery deadline and delays in delivery
(1) The delivery deadline is agreed individually and we inform the purchaser about the deadline when we accept the order. Where this is not the case, the delivery deadline is approximately 2 weeks from the conclusion of the contract.
(2) If we cannot meet binding delivery deadlines for reasons that we are not responsible for (unavailability of the service), we will inform the purchaser of this immediately and at the same time notify them of a new provisional delivery deadline. If the service is not available within the new delivery deadline, we are entitled to withdraw in part or in full from the contract. We will immediately reimburse any consideration already made by the purchaser. The unavailability of the service in this context includes in particular the failure of our supplier to deliver to us on schedule, when we have concluded an equivalent covering transaction, when neither we or our supplier are at fault or when we are not obliged to procure the goods in an individual case.
(3) The start of a delay in delivery is determined by the statutory provisions. However, the purchaser must send a reminder in every case. If our delivery is delayed, the purchaser can request a lump sum in compensation for the damage caused by the delay. The lump sum compensation amounts to 0.5% of the net price (delivery value) for every full week of delay, up to a maximum of 5% of the delivery value of the goods that have been delayed. We reserve the right to provide proof that the purchaser has not incurred any damage or only a lot less damage than that represented by the lump sum described above.
(4) The purchaser's rights under section 9 of these GTC and our statutory rights, in particular in the event of an exemption from the duty to provide a service (for example, because of the impossibility or unreasonableness of the service and/or subsequent performance), are unaffected.
Section 4 Delivery, transfer of risk, handover and delay in acceptance
(1) The goods are delivered in Germany and in other countries "ex works" (Incoterms 2000). The goods can be sent to another destination at the purchaser's request and expense (mail order sales). Unless otherwise agreed, we are entitled to determine the type of shipment ourselves (in particular the transport company, transport route and packaging).
(2) The risk of the accidental destruction of or damage to the goods is transferred to the purchaser at the latest when the goods are handed over. However, in the case of mail order sales the risk of the accidental destruction of or damage to the goods and the risk of delay are transferred to the purchaser when the goods are delivered to the transport company, the carrier or the person or organisation responsible for shipping the goods. If a handover has been agreed, this is when the transfer of risk takes place. The statutory provisions of the law on contracts for work and services also apply to an agreed handover. The transfer and handover are considered to be equivalent, if the purchaser delays acceptance of the goods.
(3) If the purchaser delays acceptance of the goods or fails to cooperate or if our delivery is delayed for other reasons that the purchaser is responsible for, we are entitled to claim compensation for the resulting damage, including additional expenses (for example storage costs). We calculate the lump sum compensation for every month or part of a month of delay on the basis of 0.5% of the price of the goods, up to a maximum of 5% of the price of the goods, starting on the delivery deadline or, if there is no delivery deadline, starting with the notification that the goods are ready to ship.
Our right to provide proof that greater damage has been incurred and our statutory claims (in particular for reimbursement of additional expenses, appropriate compensation, termination) are unaffected. However, the lump sum must be offset against further financial claims. The purchaser is entitled to provide proof that we have not incurred any damage or only a lot less damage than that represented by the lump sum described above.
(4) Partial deliveries and corresponding charges are permitted, provided that they are acceptable to the purchaser.
Section 5 Prices and payment terms
(1) Unless otherwise agreed in individual cases, our prices in force at the time when the contract was concluded apply, ex stock and plus VAT at the statutory rate.
(2) In the case of mail order sales (section 4 paragraph 1), the purchaser must pay the transport costs ex stock and the costs of any transport insurance required by the purchaser. If in individual cases we do not charge for the transport costs we have actually incurred, a flat-rate transport cost of EUR 7.80 (excluding transport insurance) is considered to have been agreed. The purchaser must pay any customs duties, fees, taxes and other official charges.
(3) The purchase price is due and must be paid within 30 days of the invoice date and the delivery or handover of the goods. However, we are entitled at any time, including in the context of an ongoing business relationship, to make a delivery in part or in full only on the basis of cash on delivery, cash in advance or direct debit. We will make clear any reservations of this kind on the order confirmation at the latest.
(4) Payment by bill of exchange is only permitted after prior agreement with us. Bills of exchange and cheques only constitute payment after they have cleared. If the purchaser defaults on a payment, we are entitled to require immediate cash payment of all the receivables relating to the business relationship that are due and undisputed. This right is not excluded as a result of a deferral or of the acceptance of bills of exchange or cheques.
(5) When the payment deadline expires, the purchaser is in default. During the default period, interest is incurred on the purchase price at the current statutory default interest rate. We reserve the right to claim further damages for default payments. Our right to claim commercial interest after the due date from merchants (section 353 of the German Commercial Code) is unaffected.
(6) The purchaser only has a right to offset or retain payments if the purchaser's claim is legally established or undisputed. If there are problems with the delivery, the rights of the purchaser, in particular under the terms of section 9 paragraph 6 sentence 2 of these GTC, are unaffected.
(7) If it becomes apparent after the contract has been concluded (for example, as a result of an application to start insolvency proceedings) that our claim to the purchase price is being put at risk by the purchaser's inability to perform, we are entitled to withdraw from the contract under the statutory provisions on the right to refuse performance, if necessary after setting a deadline (section 321 of the German Civil Code). In the case of contracts for the manufacture of non-substitutable items (custom-made products) we can withdraw immediately. The statutory provisions concerning the lack of necessity to set a deadline are unaffected.
Section 6 Retention of ownership
(1) Until all our current and future receivables relating to the sales contract and the ongoing business relationship (secured receivables) have been paid in full, we retain ownership of the goods sold.
(2) The goods that are under retention of ownership must not be pledged to third parties or transferred as security until the secured receivables have been paid in full. The purchaser must inform us immediately in writing if an application to start insolvency proceedings is made or if third parties are given access to the goods belonging to us (for example in the form of attachments).
(3) If the purchaser behaves in a way which is contrary to the terms of the contract and, in particular, fails to pay the purchase price that is due, we are entitled under the terms of statutory provisions to withdraw from the contract and/or to demand the return of the goods on the basis of our retention of ownership. By demanding the return of the goods we are not automatically withdrawing from the contract. On the contrary, we are entitled simply to demand the return of the goods and to reserve the right to withdraw. If the purchaser does not pay the purchase price that is due, we can only exercise these rights when we have previously set a reasonable deadline for the purchaser to pay without success or when setting a deadline of this kind is not necessary under the terms of statutory provisions.
(4) Until the right to sell the goods is withdrawn as described in (c) below, the purchaser is authorised to sell and/or process the goods that are under retention of ownership in the normal course of business. In this case, the following provisions also apply.
(a) The retention of ownership is extended to cover products created by processing, combining or connecting our goods at the full value of the products where we are regarded as the manufacturer. If our goods are processed, combined or connected with those of a third party and the third party retains its ownership, we are granted co-ownership in proportion to the invoice value of the processed, combined or connected goods. In other respects, the same terms apply to the products created in this way as to the goods supplied under retention of ownership.
(b) The third-party receivables resulting from the resale of the goods or products must be assigned to us immediately as security by the purchaser either in full or in proportion to our co-ownership as described in the previous paragraph. We accept the assignment. The duties of the purchaser described in paragraph 2 also apply with regard to the assigned receivables.
(c) The purchaser is entitled to collect the receivables together with us. We undertake not to collect the receivables, provided that the purchaser fulfils its payment obligations to us, there are no problems with the purchaser's ability to perform and we have not asserted our retention of ownership by exercising our right as described in paragraph 3. However, if any of these things are the case, we can demand that the purchaser informs us about the assigned receivables and its debtors, provides us with all the information needed for collection, supplies us with the accompanying documents and notifies the debtors (third parties) about the assignment. In this case we are also entitled to withdraw the purchaser's authorisation to resell and process the goods that are under retention of ownership.
(d) If the realisable value of the securities exceeds that of our receivables by more than 10%, we will release securities at the purchaser's request and at our discretion.
Section 7 Claims for defects by the purchaser
(1) The rights of the purchaser in the case of material and legal defects (including incorrect deliveries, under-deliveries, incorrect assembly or poor assembly instructions) are determined by the statutory provisions, unless stated otherwise below. The special statutory provisions concerning the final delivery of the goods to a consumer (supplier's recourse in accordance with sections 478 and 479 of the German Civil Code) are unaffected in all cases.
(2) Our liability for defects is based primarily on the agreement reached concerning the quality of the goods. The agreement concerning the quality of the goods consists of all the product descriptions that form part of the individual contract or that have been published by us (in particular in catalogues or on our website).
(3) If no agreement has been reached on the quality of the goods, an evaluation must be made of whether or not a defect exists on the basis of statutory provisions (section 434 paragraph 1 sentences 2 and 3 of the German Civil Code). However, we accept no liability for public statements made by the manufacturer or other third parties (for example, claims made in advertisements).
(4) Claims for material defects cannot be made in the case of minor deviations from the agreed standard of quality or of minor impairments to the usefulness of the goods.
(5) The following are not material defects:
Normal wear and tear.
Qualities of the goods or damage caused by incorrect handling, storage or installation, the failure to follow installation and handling instructions or excessive loads or usage after the transfer of risk.
Non-functioning goods or damage resulting from improper use.
Qualities of the goods or damage caused by force majeure, by specific external influences not specified in the contract or by using the goods in a way not specified in the contract or in a way that does not constitute normal use.
Non-reproducible software errors.
Claims for material defects can also not be made if the goods have been modified by third parties or if third-party components have been added to them, unless the defect is unrelated to the modification.
(6) We are not liable for the quality of the goods that results from the design or the choice of material if the purchaser has specified the design or the material.
(7) If the purchaser makes a claim for defects, it must have fulfilled its statutory duties to investigate the defect and lodge a complaint (sections 377 and 381 of the German Commercial Code). If a defect emerges during delivery or inspection or at a later date, the purchaser must inform us about it immediately in writing. In every case obvious defects must be reported in writing within ten working days of delivery and defects that could not be detected during the inspection must be reported in writing within the same period after they are discovered. The purchaser must send the labels from cardboard boxes and the delivery note that accompanied the delivery to us with the complaint about the defect. If the purchaser fails to inspect the goods properly and/or to report the defect, we accept no liability for the defects that were not reported or not reported in good time or not reported properly under the terms of statutory provisions.
(8) If the item that was delivered is defective, we can choose whether to provide subsequent performance by rectifying the defect (repair) or by supplying an item that is free of defects (replacement delivery). Our right to refuse to provide subsequent performance under the terms of statutory provisions is unaffected. Subsequent performance does not cause the limitation period to restart (section 10).
(9) We are entitled to make the required subsequent performance conditional on the purchaser paying the purchase price that is due. However, the purchaser is entitled to withhold an appropriate part of the purchase price in proportion to the defect.
(10) The purchaser must give us the necessary time and opportunity to provide the required subsequent performance and, in particular, must supply us with the goods that are the subject of the complaint for the purposes of inspection. In the case of a replacement delivery, the purchaser must return the faulty item to us under the terms of statutory provisions. The subsequent performance does not involve uninstalling or reinstalling the faulty item, if we were not originally required to install it.
(11) We will pay the expenses involved in inspecting the item and providing the subsequent performance and in particular the transport, travel, labour and material costs (but not the uninstallation and reinstallation costs), provided that the defect exists. Otherwise we can require the purchaser to pay the costs of the unjustified request to rectify the defect (in particular inspection and transport costs), unless it was impossible for the purchaser to identify that the defect did not exist.
(12) In urgent cases, for example if operational safety is being put at risk or to prevent disproportionate damage from being caused, the purchaser has the right to rectify the defect itself and to claim compensation from us for the necessary expenses. We must be informed immediately, if possible in advance, about measures of this kind taken by the purchaser. The purchaser does not have the right to take measures itself if we would be justified in refusing to provide subsequent performance under the terms of statutory provisions.
(13) If the attempt to provide subsequent performance has failed or if a reasonable deadline for the subsequent performance has been set by the purchaser and has passed without success or if subsequent performance is unnecessary under the terms of statutory provisions, the purchaser can withdraw from the sales contract or reduce the purchase price. However, the purchaser does not have the right to withdraw in the case of a minor defect.
(14) The purchaser is entitled to make recourse claims against us only if the purchaser has not entered into any agreements, for example generosity schemes, with its customers that go beyond statutory claims for defects.
(15) In the event of defects, the purchaser can only make claims for damages or for compensation for wasted expenses under the terms of section 9. In other cases these claims are excluded.
Section 8 Industrial property rights and copyright
(1) We are not liable for claims resulting from the breach of third parties' industrial property rights or copyright (referred to in the following as industrial property rights) if the industrial property rights belong or belonged to the purchaser or to a company owned directly or indirectly by the purchaser with a majority shareholding or majority voting rights.
(2) We are not liable for claims resulting from the breach of industrial property rights if at least one of the rights from the family of rights has not been published either by the European Patent Office or in one of the following countries: Germany, France, the United Kingdom, Austria or the USA.
(3) The purchaser must inform us immediately of (alleged) breaches of industrial property rights or of any risk of a breach occurring that it becomes aware of and must at our request and as far as possible transfer to us the responsibility for managing legal disputes (including those outside of court).
(4) We are entitled at our discretion to establish a right of use for a product that breaches an industrial property right or to modify it in such a way that it no longer breaches the industrial property right or to replace it with an equivalent product that no longer breaches the industrial property right. If we are not able to do this under reasonable conditions or within a reasonable deadline, the purchaser has the statutory rights of withdrawal at its disposal, provided that the purchaser has made it possible for us to implement a modification. Under these circumstances, we are also have a right of withdrawal. The provisions of section 7 paragraph 14 apply accordingly. We reserve the right to take the measures available to us under the terms of sentence 1, if the breach of industrial property rights has not yet been legally established or recognised by us.
(5) The purchaser cannot make claims against us if it is responsible for the breach of industrial property rights or if it has not given us sufficient help to defend ourselves against claims from third parties.
(6) The purchaser also cannot make claims against us if the products were manufactured in accordance with the purchaser's specifications or instructions or if the (alleged) breach of industrial property rights is the result of using the product together with another object that is not supplied by us or if the products were used in a way that we could not foresee.
(7) The purchaser cannot make further claims or claims other than those described here as a result of the breach of third parties' industrial property rights. In other respects our duty to pay damages for breaches of industrial property rights is based on section 9.
(8) Section 10 applies to the limitation of claims resulting from breaches of industrial property rights.
Section 9 Other liability
(1) Unless otherwise stated in these GTC, including the provisions below, we are liable for a breach of our contractual and non-contractual duties under the terms of the statutory provisions.
(2) We are liable for damages, for whatever legal reason, on the grounds of liability for fault in the event of intent or gross negligence. In the event of simple negligence, we are only liable as follows under the terms of the statutory provisions, subject to a less stringent standard of liability (for example for care concerning our own affairs):
a) For damages resulting from death, injury or harm to health.
b) For damages resulting from the serious breach of a major contractual duty (a duty which must be fulfilled in order to allow for the proper implementation of the contract and which the other party to the contract regularly relies on and must be able to rely on the fulfilment of). However, in this case our liability is limited to compensation for foreseeable damage of the kind that typically occurs.
(3) The limitations on liability resulting from paragraph 2 also apply to breaches of duty by or in favour of people whose fault we are responsible for under the terms of statutory provisions. The limitations do not apply if we fraudulently conceal a defect or if we have taken over a warranty concerning the quality of the goods and in the case of claims by the purchaser under the Product Liability Act.
(4) In the case of a breach of duty that does not consist of a defect, the purchaser can only withdraw from or terminate the contract if we are responsible for the breach of duty. The purchaser does not have an unrestricted right of termination (in particular under the terms of sections 651 and 649 of the German Civil Code). Otherwise the statutory requirements and legal consequences apply.
(5) The provisions above do not involve a shift in the burden of proof to the disadvantage of the purchaser.
Section 10 Limitation of claims
(1) Contrary to section 438 paragraph 1 point 3 of the German Civil Code, the general period for the limitation of claims for material and legal defects is one year from the delivery of the goods. If a handover process has been agreed, the limitation period begins with the handover of the goods.
(2) However, if the goods are a building or an item that has been used as a building in accordance with its normal method of use and this has caused the defect (building materials), the period of limitation is 5 years from delivery under the terms of the statutory provisions (section 438 paragraph 1 point 2 of the German Civil Code). Other special statutory provisions relating to the limitation of claims are unaffected (in particular section 438 paragraph 1 point 1, paragraph 3, sections 444 and 479 of the German Civil Code).
(3) The existing limitation periods under sale of goods law also apply to contractual and non-contractual claims for damages by the purchaser that are based on a defect in the goods, unless the application of the regular statutory limitation period (sections 195 and 199 of the German Civil Code) would in individual cases result in a shorter limitation period. However, claims for damages by the purchaser under the terms of section 10 paragraph 2 sentence 1 and sentence 2(a) and under the terms of the Product Liability Act expire only after the statutory limitation periods.
Section 11 Secrecy
(1) All business-related or technical information provided by us (including features of the objects or software that we have supplied and other knowledge or experience) must be kept secret from third parties for as long as and in so far as they cannot be demonstrated to be public knowledge or have been provided to the purchaser by us for resale. The information must only be made available to people in the purchaser's own company who are required to use it. These people must also undertake to keep the information secret. It remains our exclusive property. Information of this kind must not be reproduced or used for commercial purposes without our advance written consent. At our request, all the information provided by us (if necessary including copies or records that have been made) and objects loaned by us must be returned to us immediately and in full or must be destroyed.
(2) We reserve all the rights to the information referred to in paragraph 1 (including copyright and the right to register industrial property rights, such as patents, samples, semiconductor chip protection etc.).
Section 12 Choice of governing law and place of jurisdiction
(1) These GTC and the contractual relationship between us and the purchaser are governed by the law of the Federal Republic of Germany, with the exclusion of German private international law and uniform international law, in particular UN sales law (CISG).
(2) If the purchaser is a merchant under the terms of the German Commercial Code, a legal person under public law or a special fund under public law, the exclusive international place of jurisdiction for all disputes resulting directly or indirectly from the contractual relationship is our headquarters in Schmallenberg. This also applies if the purchaser is an entrepreneur under the terms of section 14 of the German Civil Code. However, in all cases we are also entitled to institute legal proceedings at the place of performance of the delivery obligations under the terms of these GTC or an individual agreement that takes priority over them or at the purchaser's general place of jurisdiction. Overriding statutory provisions, in particular concerning exclusive competences, are unaffected.
Section 13 Information about the warranty process
(1) Notwithstanding statutory warranty claims, we provide the consumer with a manufacturer's warranty. From 1 January 2002 onwards the warranty period is 12 months for commercial/professional use and 24 months for exclusively private use. Below we provide information about our warranty terms and our warranty process. The main requirements for accepting a warranty claim are as follows:
(2) The place of purchase must be within the EU. The proof of purchase consists of the original printed sales receipt showing the date of purchase and the model number of the device.
The purchaser must follow the operating instructions for the device and the installation and connection information.
(3) The warranty does not cover:
Damage caused by incorrect operation, installation or connection, improper use or unsuitable accessories.
Damage caused by repair, maintenance and cleaning work that has not been carried out correctly.
Damage caused by overvoltage, lightning, fire, water or smoke.
Damage to wear parts that are subjected to normal wear and tear.
(4) Our warranty services and details of our warranty process:
All faults that occur during the warranty period will be rectified by repairing the device free of charge. This also applies to devices that the retailer has immediately exchanged with the consumer for a replacement device which is free of faults as an exceptional case and only at the explicit request of the consumer. The retailer will only be provided with a credit note or a free replacement if our assessment of the defective device shows that repairing the device would be disproportionately expensive. The consumer's transport, travel and labour costs will not be reimbursed.
(5) Warranty conditions
Under the terms of the following regulations we will rectify free of charge any damage to or faults in the device that can be demonstrated to have been caused by a manufacturing defect, providing that they are reported to us immediately after they are discovered and within 24 months of the delivery to the end customer or within 12 months for commercial use or the equivalent. We will not assume a warranty obligation in the event of minor deviations from the required quality of the device which have only a minor impact on its value and usability or in the event of damage caused by unusual environmental conditions or improper operating conditions. We will also not assume a warranty obligation if the damage to the device or the defects are the result of incorrect installation or failure to follow the operating instructions.
The warranty process involves faulty devices being repaired free of charge or replaced with fully functioning devices at our discretion. If a warranty claim is made for a device under the terms of this warranty, it must be handed over or sent to the vendor or an authorised service centre. You can obtain the addresses from us. If the device is sent, the sender is responsible for the transport risk. The end customer's shipping, transport, travel and labour costs will not be reimbursed. A sales receipt with the purchase and/or delivery date and a detailed description of the fault must be provided. Devices that have been replaced become our property.
The warranty will be invalidated if repairs or interventions are carried out by people who are not authorised by us or if our devices are fitted with spare or supplementary parts or accessories that are not original parts and that cause a defect.
The provision of warranty services does not lead to the warranty period being extended or to a new warranty period being started. The warranty period for spare parts that have been fitted ends at the same time as the warranty period for the complete device. If damage or faults cannot be rectified or if we refuse to repair the device or delay the repair for an unreasonably long period, a free replacement device will be provided at the request of the end customer. If we provide a replacement device, we reserve the right to make a reasonable charge for use for the period that the device has already been used for.
Further or other claims are excluded, in particular claims for compensation for damage caused outside the device where there is no mandatory statutory liability. These warranty terms apply to devices bought in a country in the European Union, even if they are used outside the European Union. The warranty terms issued by our relevant local agents apply to devices bought outside the European Union. You can obtain these from the dealer where you bought the device or directly from us. Our service is still available to you after the warranty has expired.