I. Scope of application
1. These General Terms of Sale (GTS) apply to all our business relationships with our customers (“Buyer”). The General Terms of Sale apply only where the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law within the meaning of § 310 (1) BGB.
2. Our General Terms of Sale apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall become part of the contract only insofar as we have expressly consented to their application. This requirement of consent applies in any case, including where the Buyer refers to its own terms in the order and we do not expressly object to them.
3. These General Terms of Sale apply 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 (§§ 433, 650 BGB). Unless otherwise agreed, the General Terms of Sale in the version valid at the time of the Buyer’s order, or in the version last communicated to the Buyer in text form, shall also apply as a framework agreement to similar future contracts, without our having to refer to them again in each individual case (as a precaution, the General Terms of Sale should in any event be attached to the order confirmation).
4. Individual agreements made with the Buyer in a particular case (including side agreements, supplements and amendments) and statements in our order confirmation take precedence over these General Terms of Sale. Subject to proof to the contrary, a written contract or our written confirmation is decisive for the content of such agreements.
5. Legally relevant declarations and notices by the Buyer regarding the contract (e.g. notices of defects, setting of deadlines, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, email, fax). Further statutory formal requirements and further proof (in particular in case of doubt about the legitimacy of the declaring party) remain unaffected.
6. Where reference is made to the application of statutory provisions, this is for clarification only. The statutory provisions therefore apply even without such clarification, to the extent that they are not directly amended or excluded by these General Terms of Sale.
II. Offer and conclusion of contract
1. Our offers are subject to change and non-binding. This also applies where we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards) and other product descriptions or documents, including in electronic form. We reserve title and copyright to all documents made available to the Buyer in connection with the placing of the order. These documents may not be made accessible to third parties unless we grant the Buyer our express written consent to do so.
2. The Buyer’s order of the goods constitutes a binding offer to contract pursuant to § 145 BGB. Unless the order states otherwise, we are entitled to accept this offer to contract within two weeks of its receipt by us.
3. Acceptance of the Buyer’s offer to contract may be declared either in writing (e.g. by an order confirmation) or by delivery of the goods to the Buyer. Should we as seller not accept the Buyer’s offer within the period under Section II.2, documents transmitted to the Buyer are to be returned to us without delay.
III. Prices and payment terms
1. Unless otherwise agreed in writing in the individual case, our prices current at the time of conclusion of the contract apply, ex warehouse, plus statutory VAT. Packaging costs are invoiced separately. Unless a fixed-price arrangement has been made, we reserve the right to make reasonable price adjustments due to changed labour, material and distribution costs for deliveries made 3 months or more after conclusion of the contract.
2. In the case of a sale by dispatch, the Buyer bears 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 are to be borne by the Buyer.
3. Payment of the purchase price must be made exclusively to the account stated overleaf. Deduction of a cash discount is permitted only by special written agreement.
4. Unless otherwise agreed, the purchase price is due and payable within fourteen days of invoicing and delivery or acceptance of the goods. We are, however, entitled at any time, including within an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We will declare a corresponding reservation at the latest with the order confirmation.
5. The Buyer is in default once the above payment period expires. During the period of default, interest is charged on the purchase price at the applicable statutory default interest rate pursuant to § 288 (2) BGB of nine percentage points above the respective base rate (see Annex 1). We reserve the right to assert further damage caused by default. As against merchants, our claim to the commercial maturity interest under § 353 HGB remains unaffected.
6. Where, after conclusion of the contract, it becomes apparent that our claim to payment of the purchase price is jeopardised by the Buyer’s lack of ability to perform (e.g. by an application to open insolvency proceedings), we are entitled, under the statutory provisions, to refuse performance and – if applicable after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible items (custom-made goods), we may declare withdrawal immediately. The statutory provisions on the dispensability of setting a deadline remain unaffected in this respect.
IV. Rights of set-off and retention
The Buyer is entitled to rights of set-off or retention only where its claim has been finally and legally established or is undisputed, and its counterclaim is based on the same contractual relationship. Where defects arise in connection with the delivery, the Buyer’s counter-rights, in particular pursuant to Section VIII.6 sentence 2 of these General Terms of Sale, remain unaffected.
V. Delivery period and delay in delivery
1. The delivery period is agreed individually or stated by us upon acceptance of the order. Where this is not the case, the delivery period is approximately 10 weeks from conclusion of the contract.
2. Should we be unable to meet contractually agreed delivery periods for reasons for which we are not responsible, we will inform the Buyer of this without delay and at the same time notify the expected or new delivery period. Where a delivery is also unavailable within the newly notified delivery period due to non-availability of the performance, we are entitled to withdraw from the contract in whole or in part; any consideration already rendered by the Buyer (in the form of payment of the purchase price) we will reimburse without delay. Non-availability of the performance exists, for example, where our supplier fails to make timely delivery to us, where we have concluded a congruent hedging transaction, where other disruptions in the supply chain occur (for example due to force majeure), or where we are not obliged to procure in the individual case.
3. Whether we as seller are in delay of delivery is determined by the statutory provisions. A precondition for delay on our part is, however, a reminder by the Buyer. Where we are in delay of delivery, the Buyer may claim flat-rate compensation for its loss caused by the delay. The flat-rate compensation amounts to 0.5% of the net price (delivery value) for each completed calendar week of delay, but in total no more than 5% of the delivery value of the goods delivered late. We reserve the right to prove that the Buyer suffered no loss, or only a lower loss, than the above flat rate.
4. The Buyer’s rights under Section X of these General Terms of Sale and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of the performance and/or subsequent performance), remain unaffected.
VI. Delivery, passing of risk, acceptance, default of acceptance
1. Delivery is made ex warehouse. The warehouse is also the place of performance for the delivery and for any subsequent performance. Where the Buyer wishes the goods to be dispatched to another destination (sale by dispatch), it bears the costs of dispatch. Where nothing has been agreed contractually, we may determine the manner of dispatch (packaging, dispatch route, carrier) ourselves.
2. Upon handover of the goods to the Buyer, the risk of accidental loss and accidental deterioration passes to the Buyer. In the case of a sale by dispatch, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, passes already upon handover of the goods to the forwarder or carrier. Where acceptance of the goods has been contractually agreed, that acceptance is decisive for the passing of risk. Further statutory provisions of the law on contracts for work remain unaffected. Default of acceptance by the Buyer is equivalent to handover or acceptance of the goods.
3. Where the Buyer is in default of acceptance, or where our delivery is delayed for other reasons for which the Buyer is responsible, we are entitled to claim compensation for the resulting damage including additional expenses (e.g. storage costs). For this we charge the Buyer flat-rate compensation of EUR 10 per calendar day (beginning with the delivery period or, where no delivery period has been determined, with notification that the goods are ready for dispatch). Statutory claims on our part (compensation for additional expenses, reasonable compensation, termination) and the proof of higher damage remain unaffected.
4. The proof of higher damage and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) remain unaffected; the flat rate is, however, to be set off against further monetary claims. The Buyer is, however, entitled to prove that we suffered no damage at all, or only a substantially lower damage than the above flat rate.
VII. Retention of title
1. We retain title to the delivered goods until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
2. Until the secured claims have been paid in full, the goods subject to retention of title may neither be pledged to third parties nor assigned as security. The Buyer must notify us in writing without delay where an application is filed to open insolvency proceedings or where third parties (e.g. by way of seizure) access the goods belonging to us. Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the Buyer is liable for the loss incurred by us.
3. In the event of conduct by the Buyer in breach of contract, in particular non-payment of the purchase price due, we are entitled to withdraw from the contract under the statutory provisions and/or to demand surrender of the goods on the basis of the retention of title. The demand for surrender does not at the same time contain a declaration of withdrawal; rather, we are entitled merely to demand surrender of the goods and to reserve withdrawal. Where the Buyer does not pay the purchase price due, we may assert these rights only if we have previously set the Buyer a reasonable deadline for payment without success. This applies only insofar as such a setting of a deadline is not dispensable under the statutory provisions.
4. The Buyer is authorised, until revocation pursuant to (c) below, to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case the following provisions apply additionally:
a) The products created by combination, mixing or processing of our goods are subject to the retention of title to their full value, with us being deemed the manufacturer. Where, in the case of combination, mixing or processing with goods of third parties, their ownership right persists, we acquire co-ownership in the ratio of the invoice values of the combined, mixed or processed goods. In all other respects, the same applies to the product created as to the goods delivered under retention of title. The Buyer also assigns to us, by way of security, such claims against a third party as accrue to it through the combination of the goods subject to retention with a plot of land. We accept this assignment.
b) The Buyer already now assigns to us, by way of security, in full or in the amount of any co-ownership share of ours pursuant to VII.4 (a), the claims against third parties arising from the resale of the goods or the product, in the amount of the final invoice amount agreed with us (including VAT). We accept the assignment. The Buyer’s obligations set out in VII.2 also apply with regard to the assigned claims.
c) The Buyer remains authorised, alongside us, to collect the claim. As long as the Buyer meets its payment obligations towards us, no defect in the Buyer’s ability to perform exists, and we do not assert the retention of title by exercising a right under VII.3, we undertake not to collect the claim. Where we assert a right under VII.3, we may require the Buyer to disclose the assigned claims and their debtors, to provide all information necessary for collection, to hand over the associated documents, and to notify the debtors (third parties) of the assignment. In addition, we are entitled to revoke the Buyer’s authority to resell and to process the goods subject to retention of title.
d) Where the realisable value of the securities exceeds our claims by more than 10%, we will, at the Buyer’s request, release securities of our choice.
5. As long as title has not yet passed to it, the Buyer is obliged to treat the purchased item with care. In particular, it is obliged to insure the item adequately at its own expense against theft, fire and water damage at replacement value (note: only permissible in the case of the sale of high-value goods). Where maintenance and inspection work is required, the Buyer must carry this out in good time at its own expense.
VIII. Buyer’s claims for defects
1. The statutory provisions apply to the Buyer’s rights in the case of material and legal defects (including incorrect and short delivery as well as improper assembly/installation or defective instructions), unless otherwise determined below. The statutory provisions on the sale of consumer goods (§§ 474 et seq. BGB) and the Buyer’s rights arising from separately issued guarantees, in particular by the manufacturer, remain unaffected.
2. Agreements made with the Buyer regarding the quality and the assumed use of the goods (including accessories and instructions) generally form the basis of our liability for defects within the scope of the warranty. An agreement on quality comprises all product descriptions and manufacturer’s specifications that are the subject of the individual contract or that were publicly announced by us (in particular in catalogues or on our website) at the time of conclusion of the contract. Where no quality has been agreed, whether a defect exists is to be assessed under § 434 (3) BGB. Against this background, it should be noted that public statements by the manufacturer in advertising or on the label of the goods take precedence over statements by other third parties.
3. For goods with digital elements or other digital content, it should be noted that we are obliged to provide and to update the digital content only insofar as this expressly results from an agreement on quality pursuant to VIII.2. We assume no liability for public statements by the manufacturer and other third parties.
4. We are not liable for defects of which the Buyer is aware, or is unaware due to gross negligence, at the time of conclusion of the contract pursuant to § 442 BGB.
5. The Buyer’s claims for defects exist only insofar as the Buyer has complied with its statutory obligations to examine and to give notice (§§ 377, 381 HGB). Where the goods are building materials or other goods intended for installation or further processing, an examination must be carried out immediately before processing. A written notice to us must be given without delay where a defect appears during delivery, examination or at a later time. Obvious defects must be notified in writing within 15 working days of delivery, and defects not detectable upon examination within the same period from discovery of the defects. Where the Buyer fails to carry out a proper examination and/or to give notice of defects, our liability for the defect not notified, or not notified in time or properly, is excluded under the statutory provisions. Where the goods were intended for installation, attachment or fitting, this also applies where the defect became apparent as a result of the breach of one of these obligations only after the corresponding processing. In this case the Buyer has no claims for reimbursement of the “removal and installation costs”.
6. Where the delivered goods are defective, we as seller have the right to choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). Where the type of subsequent performance chosen by us is unreasonable for the Buyer in the individual case, the Buyer may refuse it. We remain entitled to refuse subsequent performance under the statutory conditions. We are further entitled to make the subsequent performance owed conditional upon the Buyer paying the purchase price due. The Buyer is, however, entitled to retain a part of the purchase price reasonable in relation to the defect.
7. For the subsequent performance to be rendered, the Buyer must give us the necessary time and opportunity. In particular, the Buyer must hand over to us, for inspection purposes, the item for which it asserts a defect. Where we carry out a replacement delivery of a defect-free item, the Buyer must return the defective item to us under the statutory provisions. The Buyer has no right to a return as such.
8. Unless we have undertaken otherwise by contract, subsequent performance includes neither the removal, the dismantling of the defective item nor the installation, attachment or fitting of a defect-free item. The Buyer’s claims for reimbursement of the “removal and installation costs” remain unaffected by this.
9. We will reimburse the expenses necessary for inspection and subsequent performance (in particular transport, labour and material costs as well as any removal and installation costs) in accordance with the statutory provisions and these General Terms of Sale where a defect actually exists. We may, however, demand from the Buyer reimbursement of the costs incurred as a result of an unjustified demand to remedy a defect where the Buyer knew, or could have recognised, that in fact no defect existed.
10. The Buyer has the right to remedy the defect itself and to demand reimbursement of the objectively necessary expenses for this where there is an urgent case (e.g. danger to operational safety or to avert disproportionate damage). The Buyer must inform us without delay in the case of such self-remedy. Where we would be entitled to refuse subsequent performance under the statutory provisions, the Buyer has no right to self-remedy.
11. The Buyer may, under the statutory provisions, withdraw from the purchase contract or reduce the purchase price where a deadline to be set by the Buyer for subsequent performance has expired without success or is dispensable under the statutory provisions. In the case of an insignificant defect, however, the Buyer has no right of withdrawal.
12. The Buyer’s claims for reimbursement of expenses pursuant to § 445a (1) BGB are excluded, unless the last contract in the supply chain is a sale of consumer goods (§§ 478, 474 BGB) or a consumer contract for the supply of digital products (§§ 445c sentence 2, 327 (5), 327u BGB).
13. Claims for damages or for reimbursement of futile expenses of the Buyer (§ 284 BGB) exist, even where a defect is present, only in accordance with Sections IX and X, and are otherwise excluded.
IX. Limitation
1. The general limitation period for claims arising from material and legal defects is, by way of derogation from § 438 (1) no. 3 BGB, one year from delivery. Where acceptance has been contractually agreed, the limitation period begins upon acceptance.
2. The limitation period is, pursuant to the statutory rule, 5 years from delivery (§ 438 (1) no. 2 BGB) where the goods are a building structure or an item which, in accordance with its customary use, has been used for a building structure and has caused its defectiveness (building material). This applies subject to the further statutory special rules on limitation (in particular § 438 (1) no. 1, (3), §§ 444, 445b BGB).
3. The above limitation periods of sales law also apply to contractual and non-contractual claims for damages of the Buyer that are based on a defect of the goods, unless application of the standard statutory limitation pursuant to §§ 195, 199 BGB would lead to a shorter limitation period in the individual case. Claims for damages of the Buyer pursuant to X.1 and X.2 (a) as well as claims under the Product Liability Act become time-barred exclusively in accordance with the statutory limitation periods.
X. Other liability
1. We as seller are liable, unless otherwise provided by these General Terms of Sale including the following provisions, for breaches of contractual and non-contractual obligations in accordance with the statutory provisions.
2. Within the scope of fault-based liability, we are liable for damages – on whatever legal ground – only in the case of intent and gross negligence. In the case of simple negligence we are liable, subject to statutory limitations of liability (e.g. care in our own affairs; insignificant breach of duty), only:
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of a material contractual obligation (an obligation whose fulfilment is essential to the proper performance of the contract and on whose compliance the contracting party 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 X.2 also apply as against third parties and in the case of breaches of duty by persons whose fault we are responsible for under statutory provisions. Insofar as a defect has been fraudulently concealed and a guarantee for the quality of the goods has been assumed, the limitations of liability do not apply. The same applies to claims of the Buyer under the Product Liability Act.
4. On account of a breach of duty that does not result from a defect, the Buyer may withdraw or terminate only where we as seller are responsible for the breach of duty.
5. A right of termination of the Buyer (in particular pursuant to §§ 650, 648 BGB) is excluded. In all other respects, the statutory conditions and legal consequences apply.
XI. Export control
1. The customer undertakes to comply with all applicable export control and sanctions regulations.
2. Necessary permits are to be obtained by the customer in good time.
3. ORL is entitled to suspend deliveries or to withdraw from the contract insofar as export control obstacles exist.
XII. Intellectual property rights
1. The customer ensures that drawings, data or specifications provided by it do not infringe any third-party rights.
2. The customer indemnifies ORL in this respect against claims of third parties.
XIII. Special conditions for contract manufacturing and job processing
1. Scope of services. The precise scope of services results from the offer, order or order confirmation. ORL provides services in particular in the following areas:
- Laser welding
- Laser cladding (laser deposition welding)
- Repair welding
- Tool repairs
- Prototype manufacturing
- Sample machining
- Other machining services
2. Customer material. Workpieces, components, tools, drawings or other materials provided by the customer remain the property of the customer. ORL handles these with the care customary in its own interest. No duty of safekeeping going beyond this is assumed.
3. Technical risks. The customer acknowledges that technical risks exist, in particular in the case of: repair welds; damaged tools; unknown materials; pre-damaged components; heat treatments. A particular result is owed only where it has been expressly assured in writing. Otherwise, ORL owes merely a professional execution in accordance with the state of the art.
4. Rejects and failed attempts. With first samples, prototypes or repair attempts, a failure cannot be technically excluded. Insofar as ORL does not act intentionally or with gross negligence, technically unavoidable failed attempts do not give rise to claims for damages.
5. Customer’s duty to examine. The customer must examine the processed workpieces without delay upon receipt. Detectable defects must be notified in writing within 5 working days at the latest. Where no notice is given, the services are deemed approved.
XIV. Customer property and limitation of liability
1. Liability limit for customer property. Where customer workpieces are handed over for processing, ORL is liable in the case of loss or damage only up to the proven current value (time value) of the workpiece. Liability for:
- lost profit,
- loss of production,
- consequential damage,
- contractual penalties of third parties
is excluded insofar as legally permissible.
2. Insurance. The customer is itself responsible for adequate insurance of its workpieces. Insurance by ORL is provided only on the basis of an express written agreement.
XV. Drawings, CAD data and technical documents
1. Customer’s responsibility. The customer bears responsibility for: drawings; CAD data; bills of materials; specifications; material requirements. ORL is not obliged to examine these for technical errors or infringements of intellectual property rights.
2. Indemnification. The customer indemnifies ORL against all third-party claims that are based on the documents provided by the customer. This also includes reasonable costs of legal defence.
XVI. Confidentiality
1. Trade secrets. Both contracting parties undertake to treat as confidential all of the following that become known to them in the course of the business relationship: technical information; production data; drawings; trade secrets.
2. Duration. The confidentiality obligation applies for the duration of the business relationship as well as for a further five years after its termination.
XVII. Laser systems and occupational safety
1. Operator obligations. In the case of the delivery of laser systems, the customer is responsible for compliance with all statutory regulations, in particular: occupational health and safety law; the Industrial Safety Ordinance; laser beam protection; CE-relevant operator obligations.
2. Modifications. Any modifications to: safety devices; controls; laser sources; protective enclosures are made at the customer’s own risk. As a result, warranty and liability claims may lapse.
XVIII. Place of jurisdiction and applicable law
1. German law applies exclusively.
2. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
3. The exclusive place of jurisdiction for all disputes arising from or in connection with the business relationship is Darmstadt, insofar as legally permissible.
XIX. Severability clause
Should individual provisions of these GTC be or become wholly or partially invalid, the validity of the remaining provisions remains unaffected. The statutory provisions take the place of the invalid provision.