§ 1 General Scope
1. These general terms and conditions apply to all current and future business relationships.
2. a) Business owners in the sense of these general terms and conditions are natural or legal persons or private companies vested with legal capacity with which a business relationship is established, and which act in a commercial capacity or that of an independent professional contractor.
b) Legal persons under civil law or a special fund under public law.
c) Hereafter, entities described under Number 2 a) and b) will be referred to as ‘client’ in the sense of business terms and conditions.
3. Differing, contradictory or supplementary general terms and conditions from the client are not an integral part of this contract, even if we acknowledge them, unless their applicability is expressly agreed to in writing.
§ 2 Conclusion of Contract
1. The product display in the online store does not constitute a legally binding offer; instead it is merely a non-binding online catalogue of the range of products available. By clicking ‘Buy’, the customer makes a legally binding commitment to purchase the goods in the shopping basket. The customer shall receive an order confirmation immediately after the order has been submitted. The sales contract shall only enter into effect upon receipt of our separate order confirmation. The contract is stored, and the order data and General Terms and Conditions are sent to the customer by email. Customers can view all of their previous orders by logging into the customer service pages of the website.
2. When placing an order in the online store, the customer follows the technical steps as described below in detail:
Click on “Proceed to Checkout” in the shopping basket displayed on the screen.
Redirection to the general order overview page where the customer is guided through the individual stages of the purchase.
Step 1: Selection of “Invoice and Delivery Address” (if the customer does not have a customer account and is not logged in; otherwise the invoice and delivery addresses are already stored); Entry of “Invoice Address”; If the invoice address and delivery address differ, there is the option to ”Enter a different delivery address” by checking the box.
Step 2: In the next stage, the customer is given an overview with the header “All Items of Your Order” and has the option to change the contents of the basket
Step 3: Selection of “Method of Payment” (by clicking on the desired payment method)
Step 4: The customer can choose from “More Options” by checking the relevant boxes (different delivery address, shipping date, use voucher, add a comment/note to the order)
Completion of order by clicking “Submit”. The customer proceeds to each of the order steps referred to above using the usual functions of the internet browser.
3. Our bids are subject to change. Technical changes as well as changes in form, colour and/or weight within reasonable limits are reserved.
4. If the client places the order electronically, we will immediately confirm receipt of the order. The confirmation of receipt does not constitute a binding acceptance of the order. The confirmation of receipt can be combined with the declaration of acceptance.
5. This conclusion of contract proceeds under the reservation of proper and timely self-supply by our suppliers. This does not apply in the event that failure of supply is not our responsibility, especially in the completion of a matching cover transaction with our supplier.
The client will be immediately informed of the unavailability of the goods or service. The consideration will be repaid without delay.
6. Place of fulfilment is our business headquarters.
7. The contractual language is German.
§ 3 Reservation of Title
1. In our contracts with our clients we reserve title and ownership of the goods until all claims deriving from a current business relationship have been fully settled.
2. The client is obligated to treat the goods with care. To the extent that maintenance and inspections are required, the client must regularly perform these at their own cost.
3. The client is obligated to immediately inform us of any third-party access to the goods, such as in the event of a lien, as well as any damage to or the destruction of the goods. The client must immediately report to us any change in possession of the goods as well as any change in the location of company headquarters.
4. We have the right, in the event that the client violates the contract, especially in cases of default or dereliction of an obligation according to 2 and 3 of this provision, to withdraw from this contract and to demand return of the goods.
5. The client has the right to re-sell the goods in an ordinary and regular business transaction. He cedes to us here and now all claims that accrue to him from sale to a third party in the amount of the sale invoice. We accept the cession. The client is authorised to collect the claim [accrued] under the cession. We reserve the right to collect the claim ourselves as soon as it is apparent that the client is not properly fulfilling his payment obligations and enters into default.
6. The handling and processing of the goods by the client will always proceed in our name and under assignment for us. If processing is completed using objects that do not belong to us, then we obtain co-ownership of the new object in proportion to the value of the goods supplied by us to the other processed objects. The like applies if the goods are combined with other objects that do not belong to us.
§ 4 Prices
1. In absence of any special arrangements, prices apply ex-works including packaging.
2. The VAT will be applied to the prices in the legally mandated amount; if prepayments are made in accordance with an arrangement, then the VAT will be applied to the prepayment amount.
§ 5 Payment
1. Payment in advance (without discount) is required for all cross-border transactions. All payments are to be paid free of charges to the designated payment office, insofar as nothing else is agreed.
2. The client will apply interest of 5 percentage points over the prime lending rate to any monetary debt while in default. We reserve the right to demonstrate and assert claims for higher damages for default.
3. Retention of payment or offset due to any counter-claims from the client that are disputed by us or have not been established with legal force is not permitted.
§ 6 Transfer of Risk and Shipping
1. Risk transfers to the client at the latest when the delivery items are shipped to the client, and this even if delivery proceeds in partial shipments or if we have assumed other services, e.g. costs for shipping or delivery.
2. If shipping is delayed due to events or conditions for which the client is responsible, risk transfers to the client on the day the goods are ready to be shipped.
3. At the client’s request and cost, we will insure the shipment as per his instructions.
4. If the client comes into default of acceptance, this is considered the same as delivery.
§ 7 Acceptance
The client may not refuse acceptance of goods due to insignificant faults or defects.
§ 8 Material Defects
We are liable for material defects according to the following specifications:
1. At our discretion, all parts or services are to be repaired, remedied, provided again, or performed again free of charge if they evince a material defect within the limitation period irrespective of the operational time, to the extent that the cause of the defect already existed at the time of transfer of risk.
2. Claims for compensation for material defects expire within 12 months. This does not apply to the extent that the law prescribes longer periods under §§ 438 Para. 1 No. 2 (Construction and Objects for Construction), 479 Para. 1 (Right of Recourse) and 634a Para. 1 No. 2 (Construction Defects) BGB [German Civil Code] nor in cases of harm to life, limb or health, in cases of intentional or grossly negligent violation of a contractual obligation on our part or malicious concealment of a defect. The legal regulations governing suspension of expiration of prescription and re-start of periods remain unaffected.
3. The client must inform us in writing of any obvious defects within a week of receipt of goods, at the latest (Complaint of Defect compliant with § 377 HGB [German Commercial Code]); otherwise the assertion of any claim for compensation for materials defects is excluded. Sending [posting] the notice in time meets the deadline requirement. The entire burden of proof for all prerequisites for such a claim and especially for demonstrating the defect itself, the date of identification of the defect and the timeliness of the complaint lies with the client.
4. In cases of complaint of defect, payments from the client may be retained in the amount of double the necessary costs for remedy of the defect. The client may only recoup the payments if complaint is asserted and no doubt can remain concerning the justification of this complaint. If the complaint turns out to be unjustified, we have the right to demand that the client reimburse the expenses we incurred.
5. We must first be given the opportunity of subsequent fulfilment within a reasonable period of time.
6. If, after a second attempt, subsequent fulfilment or remedy of defect proves impossible, the client can withdraw from the contract in accordance with §11 irrespective of any compensation claims for damages, or reduce the remuneration.
7. Claims for defects do not exist in cases of insignificant deviation from the promised composition and properties, of only insignificant impairment of utility, in cases of natural wear and tear or damages which arise after the transfer of risk and those arising as a result of improper or negligent treatment, excessive operational demands, use of improper operating materials or equipment, defective construction, unsuitable construction site or which arise from external influences that are not assumed under conditions of the contract, nor in software defects that cannot be reproduced. If the client or third parties perform improper modifications or maintenance operations, any consequences of these actions will not result in [valid] claims for defects.
8. Claims on the part of the client on account of expenses necessary for the purpose of subsequent fulfilment, especially costs for transportation, shipping, work and materials, to the extent that expenses increase because the object of delivery has been transferred to a location other than the client’s business location, are excluded unless that transfer is in accordance with its proper and intended use.
9. The client’s claims of recourse against us under § 478 BGB [German Civil Code] (Recourse of a Business Owner) exist only insofar as the client has made no arrangements that go beyond the legal claims for defects with his purchasers. For the scope of the client’s claims of recourse against us under § 478 Para. 2 BGB [German Civil Code], No. 8 applies analogously.
10. Additionally §11 (other damage claims) applies for claims for compensation for damages. Any claims due to material defect from the part of the client against us and our contractors that go beyond the claims specified in this § 8 are excluded.
11. Any rejected goods [returned goods] subject to complaint must first be return shipped at own cost to our company headquarters in Lindenberg. The transportation costs will only be assumed if the complaint is approved. Otherwise the client will bear all costs incurred and to be incurred.
§ 9 Commercial Proprietary Rights and Copyrights; Legal Defects
1. To the extent that nothing else is agreed upon, we are only obligated to provide the goods free of commercial proprietary rights and copyrights of third parties in the country where the delivery site is located (hereafter: proprietary rights). To the extent that a third party asserts justified claims of violation of proprietary rights by the client through goods and services provided by us and used in accordance with the contract, we are liable to the client within the period specified in § 8 No. 2 as follows:
a) At our discretion and cost, we will either obtain use rights for the shipments affected or alter them so that the proprietary right is no longer violated, or replace them. If this is not possible for use under reasonable conditions, the client may assert the legal rights of withdrawal or right to reduction in price.
b) Our duty to provide compensation for damages conforms to § 11.
c) Our above-named obligations exist only to the extent that the client immediately informs us in writing of the claims asserted by third parties, does not acknowledge a violation and all legal countermeasures and negotiations for settlement are reserved for us. If a client ceases to use the shipment in order to limit damages or for other due and sufficient causes, he is obligated to inform the third party that the cessation of use does not imply and is not associated with any recognition or acknowledgement of a violation of proprietary rights.
2. The client’s claims are excluded to the extent that he is responsible for the violation of proprietary rights.
3. Furthermore, the client’s claims are excluded to the extent that the violation of proprietary rights proceeds from special instructions from the client, from a use that we could not foresee or is caused by modifications to the shipment by the client or use of the same in combination with other products that we did not supply.
4. In the case of violations of proprietary rights, the client’s claims specified No. 1 a) along with the provisions of § 8 No. 4, 5 and 9 apply correspondingly.
5. If other legal defects exist, the provisions of § 8 apply correspondingly.
6. Any claims on the part of the client against us and our contractors owing to legal defect that go beyond or differ from the claims specified in this § 9 are excluded.
§ 10 Impossibility: Adaptation of Contract
1. To the extent that delivery is impossible, the client has the right to demand compensation for damages, unless we are not responsible for this impossibility. However, the client’s claim to compensation for damages is limited to 10% of the value of that part of the shipment which cannot be put into proper and useful operation due to the impossibility. This limitation does not apply in cases of malicious intent, gross negligence or injury to life, limb or health, in which cases liability is legally compulsory. No alteration in the burden of proof to the disadvantage of the client is herewith associated. The client’s right to withdraw from the contract remains unaffected.
2. To the extent that unforeseeable events (force majeure, e.g. mobilisation, war, civil unrest or similar events, e.g. strikes or lock-outs) significantly alter the financial importance or content of the shipment or its contents, or have significant effects on our operations, the contract will be suitably adjusted under due regard for good faith. To the extent that this proves financially unreasonable, we have the right to withdraw from the contract. Should we wish to make use of this right of withdrawal, we must communicate this to the client immediately after we have recognized the extent of the event, and this even if an extension of the delivery deadline had already been arranged with the client.
§ 11 Other Claims for Compensation for Damages
1. Claims for compensation for damages or expenses from the client (hereafter: claims for compensation for damages), regardless of their legal basis, but especially due to violation of duties deriving from the debtor relationship and impermissible acts, are excluded.
2. This does not apply to the extent that legal liability is compulsory, e.g. under the Product Liability Act, in cases of malicious intent, of gross negligence, in cases of injury to life, limb or health, or claims owing to violation of essential contractual obligations. The claim for compensation for damages for violation of essential contractual obligations is, however, restricted to damages both typical for this type of contract and foreseeable, to the extent there is no liability owing to malicious intent or gross negligence or due to injury to life, limb or health. Any change in the burden of proof to the disadvantage of the client is not associated with the provisions above.
3. To the extent that the client has legitimate claims for compensation for damages under this § 11, these expire with the end of the expiry period specified for claims for material defects under § 8 No. 2. In the case of claims for compensation for damages under the Product Liability Act, the legal statute of limitations applies.
§ 12 Right of withdrawal
If you are a consumer (as per § 13 of the German Civil Code), you are entitled to a 14-day statutory right of withdrawal. You are entitled to withdraw from this Contract within fourteen days without giving any reason for doing so. The deadline for withdrawal shall be fourteen days from the date on which you or a third party you have appointed, who is not the carrier, takes possession of the final goods delivered.
In order to exercise your statutory right of withdrawal, you must notify us
Mauderer Alutechnik GmbH
Gossholzer Str. 44
of your decision to withdraw from this Contract in a clear declaration (e.g. by sending a letter by mail, fax or email). The withdrawal deadline shall be deemed to be met if you have sent the communication concerning the exercise of the right of withdrawal before the expiry of the deadline. Consequences of withdrawal If you withdraw from this Contract, we must reimburse you for any payments we have received from you, including delivery costs (excluding the additional costs incurred if you have selected a different type of delivery to the cheapest standard delivery option offered by us) without delay, but no later than fourteen days after the day on which we receive the notice of your withdrawal from this Contract.
We will use the same payment method you used for the original transaction in order to reimburse you unless otherwise expressly agreed; under no circumstances will you be charged a fee for this refund. We may withhold the reimbursement until we have received the returned goods or until you have provided proof that you have returned the goods, whichever is earlier. You must return or hand over the goods to us without delay and no later than fourteen days from the date on which you notify us of your withdrawal from this Contract.
The deadline is deemed to be met if you send the goods before the expiry of the fourteen-day deadline. Return postage will be paid by buyer. You will only be liable for any diminished value of the goods if this loss in value is attributable to any use or handling of the goods which is not deemed necessary in order to verify the condition, features and functioning of the goods.
§ 13 Court of Jurisdiction and Applicable Law
1. In all disputes arising from the contractual relationship, any legal complaint must be filed with the court responsible for us. The like applies, if the client has no general court of jurisdiction in Germany. We also have the right to file claims at the client’s main headquarters. Our business headquarters is D-88161 Lindenberg/Allgäu. Court of jurisdiction for all legal processes relating to bills of exchange and checks is Lindenberg/Allgäu.
2. German material law under exclusion of the U.N. Convention on Contracts for the International Sale of Goods (CISG).
§ 14 Binding Nature of the Contract
Should individual provisions of the contract with the client, including the general terms and conditions, be or become wholly or partially unenforceable, the validity and enforceability of the remaining provisions shall not be effected. The wholly or partially unenforceable provisions shall be replaced by a provisions which will most closely approximate in its financial outcome that of the unenforceable provision.