AGB
GENERAL TERMS AND CONDITIONS (GTC) FOR THE SUPPLY OF BUSINESS CUSTOMERS:
I. GENERAL
1.These General Terms and Conditions (GTC) apply to all business relationships with our business partners and clients (“customers”). Unless otherwise agreed, the GTC in the version valid at the time of the customer’s order or in any case in the version last communicated to the seller 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.
These General Terms and Conditions apply exclusively. Any deviating, conflicting or supplementary General Terms and Conditions of the customer will only become part of the contract if and to the extent that ADViTEX has expressly agreed to their validity in writing. This consent requirement applies in all cases, for example even if the customer refers to its General Terms and Conditions when placing an order and ADViTEX does not expressly object to this.
2. Legally relevant declarations and notifications from the customer in relation to the contract (e.g. setting a deadline, reminder, withdrawal) must be made in writing. Written form within the meaning of these terms and conditions includes written and text form (e.g. letter, email, fax). Legal formal requirements and other proof, particularly in the event of doubts about the legitimacy of the person making the declaration, remain unaffected. If declarations are made verbally or by telephone, they require written confirmation by ADViTEX to be effective.
II. CONCLUSION OF CONTRACT
1. Offers are always subject to change and only become binding upon written confirmation of the order by ADViTEX (order confirmation). This also applies if ADViTEX has provided the buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, estimates, references to DIN standards), other product descriptions or documents - also in electronic form - to which ADViTEX reserves ownership and copyright.
2. The customer's order for the goods is considered a binding contractual offer. Unless otherwise stated in the order, ADViTEX is entitled to accept this contractual offer within two calendar weeks of its receipt by ADViTEX.
III. DELIVERY TIME
1. The delivery period is agreed individually or stated by ADViTEX in the order confirmation upon acceptance of the order.
2. For goods that are individually manufactured for the customer and are therefore not in stock ready for dispatch, the delivery period is approximately 12 weeks from the conclusion of the contract, unless this has been individually agreed in accordance with Section III Paragraph 1 or otherwise stated in the order confirmation.
3. Unless ADViTEX has promised a fixed delivery date, ADViTEX will make every effort to meet the delivery dates specified. Delivery dates measured in days mean working days.
4. If designs, cuts or other order documents are subsequently changed by the customer or not submitted in time, ADViTEX may request a reasonable extension of the delivery time.
5. If ADViTEX cannot meet binding delivery deadlines for reasons for which ADViTEX is not responsible (unavailability of the service), ADViTEX will inform the customer of this immediately and at the same time provide the expected new delivery deadline. If the service is not available within the new delivery period, ADViTEX is entitled to withdraw from the contract in whole or in part; ADViTEX will immediately reimburse any consideration already provided by the customer. Unavailability of the service occurs, for example, if ADViTEX's suppliers do not deliver on time, if ADViTEX concludes a congruent hedging transaction, if there are other disruptions in the supply chain, for example due to force majeure or shortages of raw materials and energy, traffic bottlenecks, official interventions, industrial disputes, war and riots, pandemic conditions, possible temporary closures of production facilities or suppliers by official order, as well as all major fire, water and machine damage, or if ADViTEX is not obliged to procure in the individual case.
6. The occurrence of a delay in delivery is determined by the statutory provisions. In any case, however, a reminder from the customer is required and the delay must be due to fault on the part of ADViTEX. If ADViTEX is late in delivering, the customer can demand a flat-rate compensation for the damage caused by the delay. The flat-rate compensation amounts to 0.5% of the net price (delivery value) for each completed calendar week of the delay, but a maximum of 5% of the delivery value of the goods delivered late. We reserve the right to prove that the customer has suffered no damage at all or only significantly less damage than the above flat rate.
7. The rights of the customer according to Section V of these General Terms and Conditions 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 fulfillment), remain unaffected.
IV. SHIPPING AND TRANSFER OF RISK
1. Delivery is ex warehouse, which is also the place of performance for delivery and any subsequent performance, unless otherwise agreed in individual cases. At the customer's request and expense, the goods will be sent to another destination (sale by dispatch). Unless otherwise agreed, ADViTEX is entitled, but not obliged, to determine the type of dispatch (in particular transport company, shipping route, packaging) itself.
2. The risk of accidental loss and accidental deterioration of the goods passes to the customer at the latest upon handover. In the case of mail order sales, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay passes upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. The same applies if the delivery is made directly by an ADViTEX supplier and the supplier has handed over the delivery to the person carrying out the transport.
If acceptance has been agreed, this is decisive for the transfer of risk. In all other respects, the statutory provisions of the law on work contracts apply accordingly to an agreed acceptance. Handover to the customer or, in the case of a sale by dispatch, to the freight forwarder or acceptance is deemed to have taken place if the customer is in default of acceptance.
3. If, after the readiness for delivery has been declared, the shipment is delayed at the customer's request, the risk shall pass to the customer upon notification of readiness for shipment.
4. If the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, ADViTEX is entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs). For this, ADViTEX charges a flat-rate compensation of 0.5% of the purchase price per calendar week up to a maximum of 8% of the purchase price in the event of final non-acceptance, starting 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 greater damage by ADViTEX and the legal claims of ADViTEX (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; however, the flat rate is to be offset against further monetary claims. The customer is permitted to prove that ADViTEX has suffered no damage at all or only significantly less damage than the above flat rate.
5. ADViTEX is entitled, but not obliged, to insure deliveries in the name and for the account of the customer at the customer’s expense.
6. In the case of mail order purchases (Section IV, Paragraph 1), the customer shall bear the transport costs from the warehouse and the costs of any transport insurance requested by the customer.
V. NOTICES OF DEFECTS, WARRANTY AND LIABILITY
1. The statutory provisions apply to the customer's rights in the event of material and legal defects (including incorrect and incomplete deliveries, improper assembly/installation or inadequate instructions), unless otherwise specified below. In all cases, the statutory provisions on the purchase of consumer goods (§§ 474 ff. BGB) and the customer's rights arising from separately issued guarantees, in particular from the manufacturer, remain unaffected.
2. The customer must inspect the delivery immediately after receipt and notify ADViTEX in writing of any defects and incompleteness of the delivery as well as deviations of the delivered goods from any agreed quality agreements within eight calendar days of receipt of the goods at the latest. If the customer fails to carry out a proper inspection and/or report defects, ADViTEX's liability for defects that are not reported or not reported in a timely manner or not reported properly is excluded in accordance with statutory provisions. Complaints about hidden defects must be reported within eight calendar days of discovery.
3. Complaints about hidden defects are, irrespective of the provisions of Section V, Paragraph.
2, at the latest within six months after receipt of the delivery by the customer.
4. Goods not complained about in due form and within the deadline shall be deemed to have been approved and accepted.
5. Goods complained about must be presented to ADViTEX on request. In the case of a justified complaint, ADViTEX will bear the shipping costs, otherwise the customer will bear the shipping costs if the customer knew or could have recognized that there was actually no defect. The shipping method and the associated costs must be commercially reasonable. In the case of unjustified complaints, the customer is obliged to reimburse ADViTEX for the costs of examining the complaint. if the customer knew or could have recognized that there was actually no defect.
6. In the event of a justified warranty claim, ADViTEX has the right, at its own discretion, to either carry out repairs or to deliver a replacement within a reasonable period of time. If the type of subsequent performance chosen by ADViTEX is unreasonable for the customer in the individual case, the customer can refuse it. ADViTEX's right to refuse subsequent performance under the statutory conditions remains unaffected.
If a reasonable deadline set by the customer for subsequent performance has expired without success or is unnecessary according to the statutory provisions, the customer can withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions. However, there is no right of withdrawal in the case of an insignificant defect.
7. The basis of ADViTEX's liability for defects is primarily the agreement made regarding the quality and the intended use of the goods (including accessories and instructions). If the quality has not been agreed, it must be assessed according to the statutory provisions whether a defect exists or not (Section 434 Paragraph 3 of the German Civil Code). Certain properties are only deemed to be guaranteed if ADViTEX expressly confirms this guarantee in writing.
ADViTEX is generally not liable for defects that the customer knows about at the time of conclusion of the contract or that are not known about due to gross negligence (§ 442 BGB). Furthermore, the customer's claims for defects require that he has complied with his statutory inspection and notification obligations (§§ 377, 381 HGB).
8. ADViTEX is not liable for customary deviations or minor, technically unavoidable deviations, e.g. quality, colour, shape or size of the delivery item.
a. Unless otherwise stated in these General Terms and Conditions, including the following provisions, ADViTEX shall be liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions.
b. ADViTEX is liable for damages – regardless of the legal basis – within the scope of liability for culpable intent and gross negligence. In the case of simple negligence, ADViTEX is liable, subject to statutory liability limitations (e.g. care in its 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 an essential contractual obligation (obligation whose fulfilment enables the proper execution of the contract in the first place and on whose compliance the contractual partner regularly relies and may rely); in this case, however, ADViTEX's liability is limited to compensation for foreseeable, typically occurring damage.
c. The liability limitations arising from paragraph 2 also apply to third parties and in the event of breaches of duty by persons (including in their favour) whose fault ADViTEX is responsible for according to statutory provisions. They do not apply if a defect was fraudulently concealed or a guarantee for the quality of the goods was given and for claims by the customer under the Product Liability Act.
d. The customer can only withdraw or terminate the contract due to a breach of duty that does not constitute a defect if ADViTEX is responsible for the breach of duty. The customer's free right of termination (in particular in accordance with Sections 650 and 648 of the German Civil Code) is excluded. In all other respects, the statutory requirements and legal consequences apply.
VI. PRICES AND PAYMENT
1. Prices within the Federal Republic of Germany are exclusive of VAT applicable at the time of delivery, transport and packaging ex warehouse Germany.
If the customer orders a special production that is not available from the German warehouse, the FOB prices are based on the country of production. Further details are regulated in the offer and/or order confirmation by ADViTEX.
2. For customers in the retail sector, a payment term of 30 days net from invoicing and delivery or acceptance of the goods, 10 days 2%, generally applies. ADVITEX reserves the right to change these payment terms in individual cases. However, ADViTEX is entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. A corresponding reservation will be declared at the latest with the order confirmation.
3. In the case of mail order sales, Clause VI. Paragraph 2 applies, with the proviso that the purchase price is due upon notification to the customer that the goods are available from the warehouse in Germany or from the warehouse in the country of production.
4. In the event of payment deadlines being exceeded, ADViTEX is entitled to charge preferential interest of 3% above the applicable Bundesbank discount rate. The right to claim higher interest losses by providing evidence remains reserved.
5. The customer waives the right to assert a right of retention from previous or other transactions within the business relationship. Set-off against counterclaims is only permitted to the extent that these are recognized by ADViTEX and are due for payment or have been legally established.
6. If it becomes apparent after conclusion of the contract (e.g. by filing for insolvency proceedings) that the claim to the purchase price is at risk due to the customer's inability to pay, ADViTEX is entitled to refuse performance and - if necessary after setting a deadline - to withdraw from the contract in accordance with the statutory provisions (Section 321 of the German Civil Code). In the case of contracts for the manufacture of non-fungible items (custom-made items), ADViTEX can declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.
VII. RESERVATION OF TITLE
1. The delivered goods remain the property of ADViTEX until all current and future claims arising from the purchase contract and from an ongoing business relationship have been fully settled. In the case of an ongoing invoice, the reserved title serves as security for ADViTEX's balance claim.
2. The customer is only entitled to resell or otherwise dispose of the reserved goods if he has purchased them from ADViTEX as a reseller, as long as the resale is carried out as part of his normal business operations and as long as he is not in default towards ADViTEX. The customer hereby assigns to ADViTEX all claims arising from the resale, including any securities, in the amount of the purchase price claim of ADViTEX. If ADViTEX's property is sold together with other goods not belonging to ADViTEX, the assignment of the claim from the resale applies in the amount of the value of the reserved goods.
3. The customer is entitled to collect claims from the resale to the extent stated above until revoked by ADViTEX at any time. At ADViTEX's request, the customer is obliged to inform its customers of the assignment made in favor of ADViTEX and to provide ADViTEX with the information and documents required for collection. In addition, ADViTEX is also entitled to disclose the assignment to its customers at the customer's expense. The assertion of the retention of title only counts as withdrawal from the contract if ADViTEX expressly declares this in writing, unless otherwise required by law.
4. Pledging or transferring the reserved goods as security to third parties is excluded. In the event of seizure, the customer must expressly point out the retention of title and notify ADViTEX immediately.
5. If the customer acts in breach of contract, in particular if the purchase price due is not paid, ADViTEX is 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 return does not simultaneously entail a declaration of withdrawal; ADViTEX is instead entitled to simply demand the return of the goods and to reserve the right to withdraw. If the customer does not pay the purchase price due, we may only assert these rights if ADViTEX has previously unsuccessfully set the customer a reasonable deadline for payment or if such a deadline is unnecessary according to the statutory provisions.
VIII. PROPERTY RIGHTS
The customer undertakes to pay a standard fee for designs, protective rights such as existing patents, utility model protection, etc. The aforementioned rights are only transferred to the customer if this has been expressly confirmed in writing by ADViTEX. If an order is confirmed using one of the above-mentioned rights and a total price is agreed, the use of the right only applies to the respective order. Any further use of rights to designs, patents, etc. requires the express written consent of ADViTEX and is subject to a fee, unless the parties have expressly agreed otherwise in writing.
IX. MISCELLANEOUS
Should a provision of this contract be or become invalid or should a gap emerge in this contract, the validity of the contract shall otherwise not be affected. Rather, the invalid provisions or the gap shall be replaced by a provision that comes closest to the intention of the contracting parties when concluding the contract or - in the case of a gap - would have corresponded had they considered this point.
X. Limitation Period
1. Deviating from Section 438 Paragraph 1 No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material and legal defects is one year from delivery. If acceptance has been agreed, the limitation period begins with acceptance.
2. The above limitation periods under the law on sales also apply to contractual and non-contractual claims for damages by the customer that are based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages by the customer in accordance with Section V, Paragraph 7 b. and under the Product Liability Act expire exclusively according to the statutory limitation periods.
XI. PLACE OF PERFORMANCE, JURISDICTION, APPLICABLE LAW
1. The place of performance for all obligations arising from this contract is, unless otherwise agreed individually, the registered office of ADViTEX.
2. The place of jurisdiction for all disputes arising from the relationship between the customer and ADVITEX is Karlsruhe if the customer is a registered trader or has no general place of jurisdiction in Germany. The same applies if the customer moves his place of residence or habitual abode abroad after conclusion of the contract or if his habitual abode is not known at the time the action is brought.
3. The contractual relationships are subject exclusively to the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
Karlsruhe, July 11, 2023
I. GENERAL
1.These General Terms and Conditions (GTC) apply to all business relationships with our business partners and clients (“customers”). Unless otherwise agreed, the GTC in the version valid at the time of the customer’s order or in any case in the version last communicated to the seller 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.
These General Terms and Conditions apply exclusively. Any deviating, conflicting or supplementary General Terms and Conditions of the customer will only become part of the contract if and to the extent that ADViTEX has expressly agreed to their validity in writing. This consent requirement applies in all cases, for example even if the customer refers to its General Terms and Conditions when placing an order and ADViTEX does not expressly object to this.
2. Legally relevant declarations and notifications from the customer in relation to the contract (e.g. setting a deadline, reminder, withdrawal) must be made in writing. Written form within the meaning of these terms and conditions includes written and text form (e.g. letter, email, fax). Legal formal requirements and other proof, particularly in the event of doubts about the legitimacy of the person making the declaration, remain unaffected. If declarations are made verbally or by telephone, they require written confirmation by ADViTEX to be effective.
II. CONCLUSION OF CONTRACT
1. Offers are always subject to change and only become binding upon written confirmation of the order by ADViTEX (order confirmation). This also applies if ADViTEX has provided the buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, estimates, references to DIN standards), other product descriptions or documents - also in electronic form - to which ADViTEX reserves ownership and copyright.
2. The customer's order for the goods is considered a binding contractual offer. Unless otherwise stated in the order, ADViTEX is entitled to accept this contractual offer within two calendar weeks of its receipt by ADViTEX.
III. DELIVERY TIME
1. The delivery period is agreed individually or stated by ADViTEX in the order confirmation upon acceptance of the order.
2. For goods that are individually manufactured for the customer and are therefore not in stock ready for dispatch, the delivery period is approximately 12 weeks from the conclusion of the contract, unless this has been individually agreed in accordance with Section III Paragraph 1 or otherwise stated in the order confirmation.
3. Unless ADViTEX has promised a fixed delivery date, ADViTEX will make every effort to meet the delivery dates specified. Delivery dates measured in days mean working days.
4. If designs, cuts or other order documents are subsequently changed by the customer or not submitted in time, ADViTEX may request a reasonable extension of the delivery time.
5. If ADViTEX cannot meet binding delivery deadlines for reasons for which ADViTEX is not responsible (unavailability of the service), ADViTEX will inform the customer of this immediately and at the same time provide the expected new delivery deadline. If the service is not available within the new delivery period, ADViTEX is entitled to withdraw from the contract in whole or in part; ADViTEX will immediately reimburse any consideration already provided by the customer. Unavailability of the service occurs, for example, if ADViTEX's suppliers do not deliver on time, if ADViTEX concludes a congruent hedging transaction, if there are other disruptions in the supply chain, for example due to force majeure or shortages of raw materials and energy, traffic bottlenecks, official interventions, industrial disputes, war and riots, pandemic conditions, possible temporary closures of production facilities or suppliers by official order, as well as all major fire, water and machine damage, or if ADViTEX is not obliged to procure in the individual case.
6. The occurrence of a delay in delivery is determined by the statutory provisions. In any case, however, a reminder from the customer is required and the delay must be due to fault on the part of ADViTEX. If ADViTEX is late in delivering, the customer can demand a flat-rate compensation for the damage caused by the delay. The flat-rate compensation amounts to 0.5% of the net price (delivery value) for each completed calendar week of the delay, but a maximum of 5% of the delivery value of the goods delivered late. We reserve the right to prove that the customer has suffered no damage at all or only significantly less damage than the above flat rate.
7. The rights of the customer according to Section V of these General Terms and Conditions 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 fulfillment), remain unaffected.
IV. SHIPPING AND TRANSFER OF RISK
1. Delivery is ex warehouse, which is also the place of performance for delivery and any subsequent performance, unless otherwise agreed in individual cases. At the customer's request and expense, the goods will be sent to another destination (sale by dispatch). Unless otherwise agreed, ADViTEX is entitled, but not obliged, to determine the type of dispatch (in particular transport company, shipping route, packaging) itself.
2. The risk of accidental loss and accidental deterioration of the goods passes to the customer at the latest upon handover. In the case of mail order sales, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay passes upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. The same applies if the delivery is made directly by an ADViTEX supplier and the supplier has handed over the delivery to the person carrying out the transport.
If acceptance has been agreed, this is decisive for the transfer of risk. In all other respects, the statutory provisions of the law on work contracts apply accordingly to an agreed acceptance. Handover to the customer or, in the case of a sale by dispatch, to the freight forwarder or acceptance is deemed to have taken place if the customer is in default of acceptance.
3. If, after the readiness for delivery has been declared, the shipment is delayed at the customer's request, the risk shall pass to the customer upon notification of readiness for shipment.
4. If the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, ADViTEX is entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs). For this, ADViTEX charges a flat-rate compensation of 0.5% of the purchase price per calendar week up to a maximum of 8% of the purchase price in the event of final non-acceptance, starting 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 greater damage by ADViTEX and the legal claims of ADViTEX (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; however, the flat rate is to be offset against further monetary claims. The customer is permitted to prove that ADViTEX has suffered no damage at all or only significantly less damage than the above flat rate.
5. ADViTEX is entitled, but not obliged, to insure deliveries in the name and for the account of the customer at the customer’s expense.
6. In the case of mail order purchases (Section IV, Paragraph 1), the customer shall bear the transport costs from the warehouse and the costs of any transport insurance requested by the customer.
V. NOTICES OF DEFECTS, WARRANTY AND LIABILITY
1. The statutory provisions apply to the customer's rights in the event of material and legal defects (including incorrect and incomplete deliveries, improper assembly/installation or inadequate instructions), unless otherwise specified below. In all cases, the statutory provisions on the purchase of consumer goods (§§ 474 ff. BGB) and the customer's rights arising from separately issued guarantees, in particular from the manufacturer, remain unaffected.
2. The customer must inspect the delivery immediately after receipt and notify ADViTEX in writing of any defects and incompleteness of the delivery as well as deviations of the delivered goods from any agreed quality agreements within eight calendar days of receipt of the goods at the latest. If the customer fails to carry out a proper inspection and/or report defects, ADViTEX's liability for defects that are not reported or not reported in a timely manner or not reported properly is excluded in accordance with statutory provisions. Complaints about hidden defects must be reported within eight calendar days of discovery.
3. Complaints about hidden defects are, irrespective of the provisions of Section V, Paragraph.
2, at the latest within six months after receipt of the delivery by the customer.
4. Goods not complained about in due form and within the deadline shall be deemed to have been approved and accepted.
5. Goods complained about must be presented to ADViTEX on request. In the case of a justified complaint, ADViTEX will bear the shipping costs, otherwise the customer will bear the shipping costs if the customer knew or could have recognized that there was actually no defect. The shipping method and the associated costs must be commercially reasonable. In the case of unjustified complaints, the customer is obliged to reimburse ADViTEX for the costs of examining the complaint. if the customer knew or could have recognized that there was actually no defect.
6. In the event of a justified warranty claim, ADViTEX has the right, at its own discretion, to either carry out repairs or to deliver a replacement within a reasonable period of time. If the type of subsequent performance chosen by ADViTEX is unreasonable for the customer in the individual case, the customer can refuse it. ADViTEX's right to refuse subsequent performance under the statutory conditions remains unaffected.
If a reasonable deadline set by the customer for subsequent performance has expired without success or is unnecessary according to the statutory provisions, the customer can withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions. However, there is no right of withdrawal in the case of an insignificant defect.
7. The basis of ADViTEX's liability for defects is primarily the agreement made regarding the quality and the intended use of the goods (including accessories and instructions). If the quality has not been agreed, it must be assessed according to the statutory provisions whether a defect exists or not (Section 434 Paragraph 3 of the German Civil Code). Certain properties are only deemed to be guaranteed if ADViTEX expressly confirms this guarantee in writing.
ADViTEX is generally not liable for defects that the customer knows about at the time of conclusion of the contract or that are not known about due to gross negligence (§ 442 BGB). Furthermore, the customer's claims for defects require that he has complied with his statutory inspection and notification obligations (§§ 377, 381 HGB).
8. ADViTEX is not liable for customary deviations or minor, technically unavoidable deviations, e.g. quality, colour, shape or size of the delivery item.
a. Unless otherwise stated in these General Terms and Conditions, including the following provisions, ADViTEX shall be liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions.
b. ADViTEX is liable for damages – regardless of the legal basis – within the scope of liability for culpable intent and gross negligence. In the case of simple negligence, ADViTEX is liable, subject to statutory liability limitations (e.g. care in its 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 an essential contractual obligation (obligation whose fulfilment enables the proper execution of the contract in the first place and on whose compliance the contractual partner regularly relies and may rely); in this case, however, ADViTEX's liability is limited to compensation for foreseeable, typically occurring damage.
c. The liability limitations arising from paragraph 2 also apply to third parties and in the event of breaches of duty by persons (including in their favour) whose fault ADViTEX is responsible for according to statutory provisions. They do not apply if a defect was fraudulently concealed or a guarantee for the quality of the goods was given and for claims by the customer under the Product Liability Act.
d. The customer can only withdraw or terminate the contract due to a breach of duty that does not constitute a defect if ADViTEX is responsible for the breach of duty. The customer's free right of termination (in particular in accordance with Sections 650 and 648 of the German Civil Code) is excluded. In all other respects, the statutory requirements and legal consequences apply.
VI. PRICES AND PAYMENT
1. Prices within the Federal Republic of Germany are exclusive of VAT applicable at the time of delivery, transport and packaging ex warehouse Germany.
If the customer orders a special production that is not available from the German warehouse, the FOB prices are based on the country of production. Further details are regulated in the offer and/or order confirmation by ADViTEX.
2. For customers in the retail sector, a payment term of 30 days net from invoicing and delivery or acceptance of the goods, 10 days 2%, generally applies. ADVITEX reserves the right to change these payment terms in individual cases. However, ADViTEX is entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. A corresponding reservation will be declared at the latest with the order confirmation.
3. In the case of mail order sales, Clause VI. Paragraph 2 applies, with the proviso that the purchase price is due upon notification to the customer that the goods are available from the warehouse in Germany or from the warehouse in the country of production.
4. In the event of payment deadlines being exceeded, ADViTEX is entitled to charge preferential interest of 3% above the applicable Bundesbank discount rate. The right to claim higher interest losses by providing evidence remains reserved.
5. The customer waives the right to assert a right of retention from previous or other transactions within the business relationship. Set-off against counterclaims is only permitted to the extent that these are recognized by ADViTEX and are due for payment or have been legally established.
6. If it becomes apparent after conclusion of the contract (e.g. by filing for insolvency proceedings) that the claim to the purchase price is at risk due to the customer's inability to pay, ADViTEX is entitled to refuse performance and - if necessary after setting a deadline - to withdraw from the contract in accordance with the statutory provisions (Section 321 of the German Civil Code). In the case of contracts for the manufacture of non-fungible items (custom-made items), ADViTEX can declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.
VII. RESERVATION OF TITLE
1. The delivered goods remain the property of ADViTEX until all current and future claims arising from the purchase contract and from an ongoing business relationship have been fully settled. In the case of an ongoing invoice, the reserved title serves as security for ADViTEX's balance claim.
2. The customer is only entitled to resell or otherwise dispose of the reserved goods if he has purchased them from ADViTEX as a reseller, as long as the resale is carried out as part of his normal business operations and as long as he is not in default towards ADViTEX. The customer hereby assigns to ADViTEX all claims arising from the resale, including any securities, in the amount of the purchase price claim of ADViTEX. If ADViTEX's property is sold together with other goods not belonging to ADViTEX, the assignment of the claim from the resale applies in the amount of the value of the reserved goods.
3. The customer is entitled to collect claims from the resale to the extent stated above until revoked by ADViTEX at any time. At ADViTEX's request, the customer is obliged to inform its customers of the assignment made in favor of ADViTEX and to provide ADViTEX with the information and documents required for collection. In addition, ADViTEX is also entitled to disclose the assignment to its customers at the customer's expense. The assertion of the retention of title only counts as withdrawal from the contract if ADViTEX expressly declares this in writing, unless otherwise required by law.
4. Pledging or transferring the reserved goods as security to third parties is excluded. In the event of seizure, the customer must expressly point out the retention of title and notify ADViTEX immediately.
5. If the customer acts in breach of contract, in particular if the purchase price due is not paid, ADViTEX is 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 return does not simultaneously entail a declaration of withdrawal; ADViTEX is instead entitled to simply demand the return of the goods and to reserve the right to withdraw. If the customer does not pay the purchase price due, we may only assert these rights if ADViTEX has previously unsuccessfully set the customer a reasonable deadline for payment or if such a deadline is unnecessary according to the statutory provisions.
VIII. PROPERTY RIGHTS
The customer undertakes to pay a standard fee for designs, protective rights such as existing patents, utility model protection, etc. The aforementioned rights are only transferred to the customer if this has been expressly confirmed in writing by ADViTEX. If an order is confirmed using one of the above-mentioned rights and a total price is agreed, the use of the right only applies to the respective order. Any further use of rights to designs, patents, etc. requires the express written consent of ADViTEX and is subject to a fee, unless the parties have expressly agreed otherwise in writing.
IX. MISCELLANEOUS
Should a provision of this contract be or become invalid or should a gap emerge in this contract, the validity of the contract shall otherwise not be affected. Rather, the invalid provisions or the gap shall be replaced by a provision that comes closest to the intention of the contracting parties when concluding the contract or - in the case of a gap - would have corresponded had they considered this point.
X. Limitation Period
1. Deviating from Section 438 Paragraph 1 No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material and legal defects is one year from delivery. If acceptance has been agreed, the limitation period begins with acceptance.
2. The above limitation periods under the law on sales also apply to contractual and non-contractual claims for damages by the customer that are based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages by the customer in accordance with Section V, Paragraph 7 b. and under the Product Liability Act expire exclusively according to the statutory limitation periods.
XI. PLACE OF PERFORMANCE, JURISDICTION, APPLICABLE LAW
1. The place of performance for all obligations arising from this contract is, unless otherwise agreed individually, the registered office of ADViTEX.
2. The place of jurisdiction for all disputes arising from the relationship between the customer and ADVITEX is Karlsruhe if the customer is a registered trader or has no general place of jurisdiction in Germany. The same applies if the customer moves his place of residence or habitual abode abroad after conclusion of the contract or if his habitual abode is not known at the time the action is brought.
3. The contractual relationships are subject exclusively to the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
Karlsruhe, July 11, 2023