§1 Contracting Parties, Scope of Application

(1) Your contract is with Generica GmbH (hereinafter also “we”/“us”), (Tel: +49 (0)9381/552310, Fax: +49 (0)9381/5523180, Email: info@generica.de), entered in the Commercial Register of the Local Court of Würzburg under HRB 15099, legally represented by the managing director with sole power of representation, Mr. Michael Lang.

(2) These General Terms and Conditions (GTC) apply to all our business relationships with our customers who are entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), a legal entity under public law, or a special fund under public law within the meaning of Section 310(1) of the German Civil Code (BGB). The GTC apply in particular to contracts for the sale and/or delivery and installation of movable goods (hereinafter also referred to as “Goods”), regardless of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 650 BGB).

(3) Unlessotherwise agreed, our General Terms and Conditions, in the version valid at the time of the customer’s order or, in any event, in the version most recently communicated to the customer in writing, shall serve as a framework agreement for similar future contracts as well, without our having to refer to them again in each individual case.

(4) Our Terms and Conditions apply exclusively. Any deviating, conflicting, or supplementary terms and conditions of the customer or third parties shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement for consent applies in all cases, including, for example, when the customer refers to its terms and conditions in the order and we do not expressly object to them.

(5) Individual agreements made with the customer on a case-by-case basis (including ancillary agreements, additions, and amendments) and the terms set forth in our order confirmation shall take precedence over these Terms and Conditions.

(6) In case of doubt, trade terms shall be interpreted in accordance with the Incoterms® published by the International Chamber of Commerce (ICC) in the version in effect at the time the contract is concluded.

(7) References to the applicability of statutory provisions are for clarification purposes only. Even in the absence of such clarification, the statutory provisions shall therefore apply unless they are directly modified or expressly excluded in these Terms and Conditions.

§2 Conclusion of the Contract

(1) Our offers are subject to change without notice unless they are expressly designated as binding, contain binding commitments, or binding terms have been otherwise agreed upon.

(2) The customer is bound by their order as an offer to enter into a contract for 14 calendar days—or 5 calendar days in the case of an electronic order—after we receive the order. In this case, a contract is not formed until we confirm the customer’s order by means of a written order confirmation.

(3) Unless expressly agreed upon separately, the scope of services we are obligated to provide does not include the delivery of accessories or spare parts; the delivery of operating or processing instructions; the provision of consulting services; the provision of licenses, certificates, permits, or other documents required for the export, transit, or import of the goods; the fulfillment of obligations outside Germany in connection with the placing on the market of the delivered goods; compliance with measurement and weight systems, packaging, labeling, or marking regulations, as well as registration or certification obligations applicable outside Germany.

(4) If the goods are subject to export and/or import control restrictions, the customer must comply with them.

§3 Delivery, Transfer of Risk, Default of Acceptance

(1) Unless otherwise specified, our deliveries and services are made ex warehouse, which is also the place of performance for our services and any subsequent performance.

(2) At the customer’s request and expense, the goods will be shipped to a different destination. Unless otherwise agreed, we are entitled to determine the method of shipment (in particular the carrier, route, and packaging) ourselves.

(3) The risk of accidental loss or accidental deterioration of the goods passes to the customer no later than upon delivery.

(4) In the case of a sale by delivery, the risk of accidental loss or accidental deterioration of the goods, as well as the risk of delay, passes to the customer upon delivery of the goods to the shipping agent, the carrier, or any other person designated to carry out the shipment. If an acceptance has been agreed upon, such acceptance shall determine the transfer of risk. In all other respects, the statutory provisions of the law governing contracts for work and services shall apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed to have taken place even if the customer is in default of acceptance.

(5) We will insure the shipment against theft, breakage, damage during transport, fire, water damage, or other insurable risks only at the customer’s express request and at the customer’s expense.

§4 Time for Performance, Default

(1) The delivery period is agreed upon individually or specified by us upon acceptance of the order. Unless otherwise specified, the delivery period is approximately 3 weeks from the date the contract is concluded.

(2) Delivery and/or performance deadlines begin upon the customer’s receipt of our order confirmation, but not before all economic, technical, and logistical details regarding the execution of the order have been fully clarified between the customer and us, and all other prerequisites for the delivery/service to be fulfilled by the customer are fully in place, in particular agreed-upon down payments or securities and necessary cooperation by the customer have been fully provided. The same applies to delivery and/or service dates. If the customer has requested changes after placing the order, a new reasonable delivery/service period begins upon our confirmation of the change. A reasonable delivery/performance period is one that takes into account the preparatory steps required by the change to ensure readiness for delivery/performance—e.g., in the form of procurements or subcontractor deliveries—in addition to the remaining delivery/performance period.

(3) Deliveries prior to the expiration of the delivery period are permitted. In the case of a duty to collect, the delivery date shall be the date on which the goods are reported as ready for shipment; in the case of a duty to ship, the delivery date shall be the date on which the products are dispatched; and in the case of a duty to deliver, the delivery date shall be the date of delivery at the agreed delivery location.

(4) Unless otherwise agreed in writing, the customer’s interest in our service shall lapse only if we fail to deliver essential parts or deliver them late.

(5) If we are in default of delivery, the customer must first grant us a reasonable grace period of at least four weeks—unless this is unreasonable—to fulfill our obligation. If this period expires without result, claims for damages arising from a breach of duty—regardless of the reason—shall be governed solely by the provisions of § 11.

§5 Force Majeure, Supply Chain Disruptions

(1) If, for reasons beyond our control, we do not receive from our suppliers the goods or services necessary to fulfill our contractual obligation to deliver or perform—despite having properly and sufficiently secured the necessary supplies prior to entering into the contract with the customer in accordance with the quantity and quality specified in our delivery or service agreement with the customer (congruent procurement), or if events of force majeure of a non-negligible duration (i.e., lasting longer than 14 calendar days) occur, we shall inform our customer of this in a timely manner in writing or in text form. In this case, we are entitled to postpone the delivery or service for the duration of the hindrance or to withdraw from the contract in whole or in part with respect to the unfulfilled portion, provided that we have fulfilled our aforementioned duty to inform and have not assumed the procurement risk pursuant to § 276 BGB or a delivery or service guarantee. The following shall be deemed equivalent to force majeure: strikes, lockouts, government intervention, shortages of energy and raw materials, transport bottlenecks or obstacles for which we are not at fault, operational disruptions for which we are not at fault (e.g., due to fire, water damage, or machinery damage), pandemics, and all other disruptions that, upon objective assessment, were not culpably caused by us.

(2) If a delivery and/or performance date or a delivery and/or performance deadline has been agreed upon as binding, and if the agreed-upon date or deadline is exceeded due to events described in paragraph 1, the customer is entitled to withdraw from the contract with respect to the unfulfilled portion thereof after a reasonable grace period has elapsed without result. Further claims by the customer, in particular claims for damages, are excluded in this case.

(3) The provision in paragraph 2 shall apply mutatis mutandis if, for the reasons set forth in paragraph 1, it is objectively unreasonable for the customer to continue to be bound by the contract even in the absence of a contractual agreement on a fixed delivery date.

§6 Prices, Price Adjustments, and Cost Allocation

(1) Unless otherwise agreed in individual cases, our prices in euros, as valid at the time the contract is concluded, shall apply. Prices are ex warehouse and exclude applicable value-added tax. Unless otherwise agreed, any discounts are already included in the invoice amounts.

(2) In the case of mail-order purchases, the customer is responsible for shipping costs from the warehouse and the cost of any shipping insurance requested by the customer.

(3) The customer is responsible for paying customs duties , fees, taxes, and other public charges.

§7 Terms of Payment

(1) The invoice amount is payable in full within 14 days of the invoice date and the provision of services, unless otherwise agreed. However, we reserve the right at any time to make a delivery, in whole or in part, only upon receipt of payment in advance. We will state this reservation no later than in the order confirmation.

(2) The customer may pay by cash, direct debit, credit card, check, or bank transfer. We reserve the right to exclude certain payment methods.

(3) Upon expiration of the above payment deadline, the customer shall be in default.

§8 Set-off, Retention

The customer may set off counterclaims against the customer’s claims or withhold payment on the basis of such counterclaims only to the extent that the counterclaims are undisputed, have been legally established, or arise from the same contract under which the relevant delivery was made.

§9 Retention of Title

(1) Thedelivered goods (goods subject to retention of title) remain our property until all claims arising from the contract have been paid in full.

(2)The customer must treat the goods subject to retention of title with due care. The customer must insure them at his own expense against fire, water damage, and theft, with coverage sufficient to replace them at their replacement value.

(3) In the event of third-party attachment of the goods subject to retention of title or other third-party interference, the customer must indicate our ownership and must notify us immediately in writing so that we can enforce our ownership rights. If the third party is unable to reimburse us for the judicial or extrajudicial costs incurred by us in this connection, the customer shall be liable for such costs.

§10 Warranty

(1) Unless otherwise specified below, the statutory provisions apply to the customer’s rights in the event of material defects or defects of title (including incorrect or incomplete deliveries, as well as improper assembly/installation or defective instructions). In all cases, the special statutory provisions regarding final delivery of newly manufactured goods to a consumer (supplier’s right of recourse pursuant to Sections 478, 445a, 445b of the German Civil Code (BGB) or Sections 445c, 327(5), 327u of the German Civil Code (BGB)) remain unaffected, unless equivalent compensation has been agreed upon.

(2) Our liability for defects is based primarily on the agreement regarding the quality and intended use of the goods (including accessories and instructions). In this context, the agreement regarding quality includes all product descriptions and manufacturer specifications that are the subject of the individual contract or that were publicly disclosed by us (particularly in catalogs or on our website) at the time the contract was concluded. If the quality was not agreed upon, the determination of whether a defect exists shall be made in accordance with statutory provisions (§ 434(3) BGB). Public statements made by the manufacturer or on its behalf, particularly in advertising or on the product label, take precedence over statements made by other third parties.

(3) For goods containing digital elements or other digital content, we are obligated to provide and, if applicable, update the digital content only to the extent that this is expressly stipulated in an agreement on quality pursuant to paragraph 2. We assume no liability for public statements made by the manufacturer or other third parties in this regard. The service is free from defects if it is provided in accordance with the agreed quality as set forth in the contractual terms. To the extent that the quality has not been agreed upon, the service is free from defects if it is suitable for the use intended under the contract or, failing that, for ordinary use, and complies with the recognized rules of technology. We assume no liability for public statements made by the manufacturer or other third parties (e.g., advertising claims).

(4) The customer’s claims for defects are contingent upon the customer having fulfilled its statutory obligations to inspect and give notice of defects (Sections 377, 381 of the German Commercial Code (HGB)). In the case of goods intended for further processing, an inspection must in any event be conducted immediately prior to processing. If a defect becomes apparent upon delivery, during inspection, or at any later time, we must be notified of this in writing without delay. In any case, obvious defects must be reported in writing within 5 business days of delivery, and defects not detectable upon inspection must be reported within the same period from the time of discovery. If the customer fails to conduct a proper inspection and/or report defects, our liability for defects not reported, or reported late or improperly, is excluded in accordance with statutory provisions. In the case of goods intended for assembly, fitting, or installation, this also applies if the defect became apparent only after the corresponding processing as a result of a breach of one of these obligations; in this case, in particular, the customer has no claim for reimbursement of corresponding costs (“removal and installation costs”).

(5) We are entitled to make the performance of our obligation to remedy the defect contingent upon the customer’s payment of the purchase price due. However, the customer is entitled to withhold a portion of the purchase price that is reasonable in relation to the defect.

(6) Thecustomer’s claimsfor damages or reimbursement of wasted expenses shall apply only in accordance with § 11, even in the case of defects, and are otherwise excluded.

§11 Other Liability

(1) Unless otherwise provided in these Terms and Conditions, including the provisions below, we shall be liable for any breach of contractual or non-contractual obligations in accordance with applicable law.

(2) We are liable for damages—regardless of the legal basis—under the principle of fault-based liability in cases of intentional misconduct and gross negligence. In cases of ordinary negligence, we are liable only subject to a more lenient standard of liability under statutory provisions (e.g., regarding the standard of care required in one’s own affairs)

(a) fordamages resulting from injury to life, body, or health,

(b) fordamages resulting from a material breach of a fundamental contractual obligation (an obligation whose fulfillment is essential for the proper performance of the contract and on whose fulfillment the other party regularly relies and is entitled to rely); in such cases, however, our liability is limited to compensation for foreseeable, typically occurring damages.

(3) We are liable for data loss only if the customer has backed up the data regularly—at least once a day. Liability for data loss is limited to the cost of restoration provided a backup copy is available, unless the data loss was caused by us through willful misconduct or gross negligence. 

(4) The limitations of liability set forth in paragraphs 2 and 3 also apply to third parties and in cases of breaches of duty by persons (including those acting on their behalf) for whose fault we are liable under applicable law. They do not apply if a defect was fraudulently concealed or if a warranty regarding the quality of the goods was provided, nor do they apply to claims by the customer under the Product Liability Act.

(5) In the event of a breach of duty that does not constitute a defect, the customer may rescind the contract or terminate it only if we are responsible for the breach. The customer has no right to terminate the contract at will. In all other respects, the statutory requirements and legal consequences apply.

§12 Statute of Limitations

(1) Notwithstanding § 438(1)(3) of the German Civil Code (BGB), the general statute of limitations for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed upon, the statute of limitations begins upon acceptance. Special statutory provisions regarding the statute of limitations remain unaffected (in particular § 438 (1) No. 1, No. 2 (3), §§ 444, 445b BGB).

(2) The above-mentioned limitation periods under sales law also apply to the Customer’s contractual and non-contractual claims for damages based on a defect in the goods, unless the application of the standard statutory limitation period (Sections 195, 199 of the German Civil Code (BGB)) would result in a shorter limitation period in a specific case. The customer’s claims for damages pursuant to § 11(2), sentences 1 and 2(a), as well as under the Product Liability Act, are subject exclusively to the statutory limitation periods.

§13 Intellectual Property Rights

Our brochures and the website we operate, as well as their entire content (including, in particular, text, photos, images, graphics, and illustrations), any software, and all trademarks, patents, and utility models are protected by intellectual property rights against unauthorized use. Any use outside the scope of this agreement requires our prior written consent or the consent of the rights holder if we do not hold the relevant rights.

Section 14: Handling of Data and Confidentiality

(1) The parties are required to comply with the relevant legal provisions and requirements regarding data protection in the performance of this contract.

(2) The parties shall treat all information and knowledge regarding trade and business secrets, data, and documents as confidential, provided that such information originates from the other party. Each party shall ensure that such information is not disclosed, even by third parties acting on its behalf or for it. In addition, the applicable security regulations regarding the confidentiality of a party’s data and documents must be observed, provided that they have been communicated to the other party in a timely manner. 

(3) Excluded from the duty of confidentiality are data and information that were already known to the recipient prior to this without any obligation of confidentiality, or that are or become generally known, without the recipient being responsible for this, or which are disclosed or provided to the recipient by a third party not bound by a confidentiality obligation, or which must be made available to authorities pursuant to legal provisions, or which have been approved for disclosure in writing by the disclosing party, as well as unprotected ideas, concepts, experiences, other methods and techniques, and information that is of a general nature or obvious.

§15 Formality Requirements

(1) All legally binding and legally relevant statements and notices relating to the contract (e.g., setting of deadlines, notices of defects, notices of withdrawal or reduction) must be made in writing. Amendments and additions to the contract must be made in writing, unless a different form is required by law. This also applies to any amendment to the written form requirement itself. The priority of individual agreements (§ 305b BGB) in written, textual, or oral form remains unaffected by this provision.

(2) For the purposes of these Terms and Conditions, “in writing” includes written and text-based forms (e.g., letter, email, fax).

§16 Choice of Law, Jurisdiction

(1) All legal relationships between the contracting parties arising out of or in connection with this contract shall be governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of any uniform international law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG). If such laws refer to foreign legal systems, such references shall be void.

(2) The conditions and effects of the retention of title pursuant to § 9 shall be governed by the law of the location of the item, to the extent that the choice of law in favor of German law is impermissible or ineffective under such law.

(3) The exclusive—including international—place of jurisdiction for all disputes arising directly or indirectly from or in connection with the contractual relationship is our registered office. However, we are also entitled to bring an action at the place of performance of the delivery obligation or of a prior individual agreement, or at the customer’s general place of jurisdiction. Overriding statutory provisions, in particular those regarding exclusive jurisdiction, remain unaffected.

§17 Severability Clause

Should any provision of this Agreement be or become wholly or partially invalid, void, or unenforceable under the law governing general terms and conditions, the statutory provisions shall apply. Should parts of this Agreement be or become invalid for other reasons, the remaining parts of this Agreement shall remain unaffected. In such a case, both parties undertake to agree on a valid clause in place of the invalid clause, which corresponds in its legal and economic substance to the invalid, void, or unenforceable provision and to the overall purpose of the contract. The same applies in the event of an unenforceable provision or a gap in the provisions.