General Terms and Conditions

General Terms and Conditions of Delivery and Business of List-Magnetik Dipl.-Ing. Heinrich List GmbH
for Products and Services of the Electrical Industry
- Status 27.04.2023 -

§ 1 General Provisions
1. deliveries, services and offers of the company List-Magnetik Dipl.-Ing. Heinrich List GmbH (hereinafter referred to as "List-Magnetik") shall be made to entrepreneurs exclusively on the basis of these General Terms and Conditions.
2. the customer's general terms and conditions (hereinafter referred to as "customer") shall only apply if List-Magnetik has expressly agreed to them in writing. The customer's GTC shall not become an integral part of the contract if List-Magnetik has not expressly objected to them after receipt.

§ 2. offer and conclusion of contract
1. all offers made by List-Magnetik shall be subject to change and non-binding unless they are expressly marked as binding or contain a specific acceptance period. List-Magnetik may accept orders or contracts within fourteen days of receipt.
2. verbal promises made by List-Magnetik prior to conclusion of the contract shall not be legally binding. Verbal agreements shall be replaced by the written or textual contract unless it is expressly stated in each case that they shall continue to be binding. Supplements and amendments to the agreements, including these GTC, must be made in text form to be effective. The text form requirement can only be waived in writing. With the exception of the managing director or authorized signatory, List-Magnetik's employees shall not be entitled to make any verbal agreements deviating from this.
3. information provided by List-Magnetik on the subject matter of the delivery or service (e.g. load capacity, weights, dimensions, tolerances and technical data) shall only be approximate unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade, deviations that occur due to legal regulations or represent technical improvements, or the replacement of components with equivalent parts are permissible, provided that they do not impair the use for the contractually intended purpose. 4.
4 List-Magnetik shall retain all rights of ownership, copyright and exploitation rights to models, illustrations, drawings, calculations, cost estimates and other documents ("Documents"). Documents may only be passed on to third parties or made accessible to them with List-Magnetik's express written consent. If no contract is concluded, the documents shall be returned in full without delay upon List-Magnetik's request and any copies shall be destroyed.
The provision of § 2 paragraph 4 of these GTC shall apply accordingly to documents of the customer. However, these may be made accessible to third parties to whom List-Magnetik has permissibly assigned deliveries.

§ 3. prices and terms of payment
(1) The prices shall apply to the scope of services and deliveries specified in the order confirmation. Additional or special services will be charged separately.
2. prices are ex works plus packaging.
All prices are Euro prices. They do not include sales tax. This will be invoiced additionally in the respective legal amount. In case of export deliveries, customs duties, fees and other public charges will be invoiced to the customer additionally.
The prices do not include the costs of installation or assembly. Installation or assembly shall be agreed separately and invoiced. 5.
5. in the case of installation or assembly, the customer shall bear, in addition to the agreed remuneration, all necessary ancillary costs such as travel expenses, costs for the transport of tools and personal luggage as well as allowances.
6. payments shall be made free List-Magnetik's payment office. They shall be made immediately upon receipt of an invoice or equivalent request for payment, unless otherwise stated in the order confirmation.
7. the customer shall only be entitled to set off its claims against List-Magnetik's claims or to withhold payments on account of such claims to the extent that the customer's claims are undisputed or have been finally determined by a court of law.
8. list-magnetik shall be entitled to perform or render outstanding deliveries or services only against advance payment or the provision of security if, after the conclusion of the contract, circumstances become known which are likely to substantially reduce the creditworthiness of the customer and as a result of which the payment of List-Magnetik's outstanding claims by the customer arising from the respective contractual relationship (including those arising from other individual orders which are subject to the same framework agreement) is jeopardized.
9. storage costs after the passing of risk shall be borne by Customer in accordance with § 5 paragraph 6 of these GTC.
 

§ 4. delivery and delivery time
1. delivery dates and delivery periods refer to the time of dispatch. They are always only approximate unless a fixed period or date has been expressly promised or agreed.
(2) If List-Magnetik is prevented from fulfilling its obligations due to the occurrence of unforeseen events which affect List-Magnetik or its supplier and which List-Magnetik could not avert even with reasonable care according to the circumstances of the case, e.g. war, civil unrest, forces of nature, industrial action, official measures, accidents, other operational disruptions or delays in the delivery of essential operating materials or primary materials, the delivery period shall be extended by the duration of the hindrance and a reasonable start-up period. If List-Magnetik is unable to deliver due to the impediment or if a supplier withdraws due to the impediment, List-Magnetik may withdraw from the contract in writing. The customer shall have the same right to withdraw in writing if acceptance is no longer reasonable due to the delay.
3. list-magnetik shall only be entitled to make partial deliveries if
- the partial delivery can be used by the customer within the scope of the contractual purpose,
- the delivery of the remaining goods ordered is assured and
- the customer does not incur significant additional expenses or costs as a result, unless List-Magnetik agrees to bear these costs.
4. if List-Magnetik is in default with a delivery or service or if a delivery or service becomes impossible for it, for whatever reason, List-Magnetik's liability shall be limited to damages in accordance with § 9 of these GTC.
 

§ 5. Erfüllungsort, Versand, Verpackung, Gefahrübergang, Entgegennahme, Abnahme
1. Erfüllungsort für alle Verpflichtungen aus dem Vertragsverhältnis ist der Sitz von List-Magnetik in Leinfelden-Echterdingen, soweit nicht etwas anderes bestimmt ist. Schuldet List-Magnetik die Aufstellung oder Montage, ist Erfüllungsort der Ort, an dem diese zu erfolgen hat.
2. Versandart und Verpackung bestimmt List-Magnetik nach pflichtgemäßem Ermessen.
3. Lieferungen werden nur auf ausdrücklichen Wunsch und Kosten des Kunden gegen die üblichen Transportrisiken versichert.
4. Die Gefahr geht spätestens mit der Übergabe des Liefergegenstandes (wobei der Beginn des Verladevorgangs maßgeblich ist) an den Spediteur, Frachtführer oder sonst zur Ausführung der Versendung bestimmten Dritten auf den Kunden über. Das gilt auch bei Teillieferungen für den jeweiligen Teil. Verzögert sich der Versand oder die Übergaben infolge eines Umstands, dessen Ursache beim Kunden liegt, geht die Gefahr auf den Kunden über, sobald List-Magnetik versandbereit ist und dies dem Kunden angezeigt hat.
5. Bei Lieferungen mit Aufstellung oder Montage geht die Gefahr auf den Kunden mit der Übernahme beim Kunden oder, soweit vereinbart, nach einwandfreiem Probebetrieb über.
6. Lagerkosten nach Gefahrübergang trägt der Kunde. Bei Lagerung durch List-Magnetik betragen die Lagerkosten 0,25 % des Rechnungsbetrags der zu lagernden Liefergegenstände pro abgelaufener Woche. Die Geltendmachung und der Nachweis weiterer oder geringerer Lagerkosten bleiben vorbehalten.
7. Lieferungen sind, auch wenn sie unerhebliche Mängel aufweisen, vom Kunden entgegenzunehmen.
8. Soweit eine Abnahme stattzufinden hat, gilt die Sache als abgenommen (Abnahmefiktion), wenn 
- die Lieferung und, soweit geschuldet, die Montage abgeschlossen ist, 
- List-Magnetik dies dem Kunden unter Hinweis auf die Abnahmefiktion mitgeteilt ihn zur Abnahme aufgefordert hat, 
- seit der Lieferung und Montage zwölf Werktage vergangen sind oder der Kunde mit der Nutzung der Sache begonnen hat und in diesem Fall seit der Lieferung oder Montage sechs Werktage vergangen sind und 
- der Kunde die Abnahme innerhalb dieses Zeitraums aus einem anderen Grund als wegen eines List-Magnetik angezeigten Mangels, der die Nutzung der Sache unmöglich macht oder wesentlich beeinträchtigt, unterlassen hat.
 

§ 5 Place of performance, dispatch, packaging, transfer of risk, acceptance, acceptance
1. The place of performance for all obligations arising from the contractual relationship shall be List-Magnetik's registered office in Leinfelden-Echterdingen, unless otherwise stipulated. If List-Magnetik is responsible for installation or assembly, the place of performance shall be the place where this is to take place.
2. List-Magnetik shall determine the type of shipment and packaging at its own discretion.
3. deliveries shall only be insured against the usual transport risks at the express request and expense of the customer.
4. the risk shall pass to the customer at the latest when the delivery item is handed over (whereby the beginning of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This also applies to partial deliveries for the respective part. If shipment or transfer is delayed as a result of a circumstance the cause of which lies with the customer, the risk shall pass to the customer as soon as List-Magnetik is ready to ship and has notified the customer of this fact.
5. in the case of deliveries involving installation or assembly, the risk shall pass to the customer upon acceptance at the customer's premises or, if agreed, after a faultless trial run.
6. storage costs after transfer of risk shall be borne by the customer. In the case of storage by List-Magnetik, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per expired week. List-Magnetik reserves the right to claim and prove further or lower storage costs.
7. Deliveries shall be accepted by the customer, even if they show insignificant defects.
8. if acceptance is required, the goods shall be deemed to have been accepted (deemed acceptance) if
- the delivery and, if owed, the assembly have been completed,
- List-Magnetik has notified Customer of this with reference to the acceptance fiction and has requested Customer to accept the goods,
- twelve working days have passed since delivery and assembly or the customer has started using the item and in this case six working days have passed since delivery or assembly and
- the customer has failed to accept the goods within this period for a reason other than a defect notified to List-Magnetik which makes the use of the goods impossible or substantially impairs it.
 

§ 7 Warranty
1. List-Magnetik grants a warranty on parts that are not subject to wear or tear for a period of one year from delivery or, insofar as acceptance is required, one year from commissioning by the customer, but no longer than one year after acceptance.
2. The warranty period shall be one year from delivery or, if acceptance is required, after acceptance.
3. The items delivered shall be inspected carefully immediately after delivery to the customer or to the third party designated by the customer. They shall be deemed to have been approved if List-Magnetik has not received a written notice of defect with respect to obvious defects or other defects that were recognizable during an immediate, careful inspection within seven working days after delivery of the delivery item, or otherwise within seven working days after discovery of the defect or the point in time at which the defect was recognizable for the customer during normal use of the delivery item without closer inspection. At List-Magnetik's request, the delivery item which is the subject of the complaint shall be returned to List-Magnetik carriage paid. In the event of a justified complaint, List-Magnetik shall reimburse the costs of the most favorable shipping route; this shall not apply insofar as the costs are increased because the delivery item is located at a location other than the location of the intended use.
4. In the event of material defects in the delivered items, List-Magnetik shall first be obligated and entitled to rectify the defect or make a replacement delivery at its own discretion within a reasonable period of time. In the event that the repair or replacement delivery fails, the customer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately.
5. If a defect is due to the fault of List-Magnetik, the customer shall be entitled to claim damages under the conditions set forth in § 9.
6. in the event of defects in components from other manufacturers which List-Magnetik cannot remedy for licensing or factual reasons, List-Magnetik shall, at its own discretion, assert its own warranty claims against the manufacturers and suppliers for the account of the customer or assign them to the customer. In the event of such defects, warranty claims against List-Magnetik shall only exist under the other conditions and in accordance with these General Terms and Conditions of Delivery if legal enforcement of the aforementioned claims against the manufacturer and supplier has been unsuccessful or is futile, for example due to insolvency. For the duration of the legal dispute the limitation period for the relevant warranty claims of the customer against List-Magnetik shall be suspended.
7. the warranty shall lapse if the customer modifies the delivery item or has it modified by a third party without List-Magnetik's consent and the rectification of defects is thereby rendered impossible or unreasonably difficult. In any case, the customer shall bear the additional costs of remedying the defect resulting from the modification.
8. a delivery of used items agreed with the customer in individual cases shall be made to the exclusion of any warranty.
 

§ 8 Industrial property rights and copyrights
1. in accordance with the provisions of this § 8, List-Magnetik warrants that the delivery item is free of industrial property rights or copyrights of third parties. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it due to the infringement of such rights.
2. in the event that the delivery item infringes an industrial property right or copyright of a third party, List-Magnetik shall, at its own discretion and at its own expense, modify or replace the delivery item in such a way that no third party rights are infringed any longer, but the delivery item continues to fulfil the contractually agreed functions, or, insofar as this is possible and reasonable for List-Magnetik, procure the right of use for the customer by concluding a licence agreement. If List-Magnetik does not succeed in doing so within a reasonable period of time, the customer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the customer shall be subject to the limitations of § 9 of these GTC. 3.
3. in the event of infringements of rights by products of other manufacturers supplied by List-Magnetik, List-Magnetik shall, at its discretion, assert its claims against the manufacturers and upstream suppliers for the account of the customer or assign them to the customer. In such cases, claims against List-Magnetik shall only exist in accordance with this § 8 if the judicial enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or is futile, for example due to insolvency.
 

§ 9 Liability and compensation for damages
1. List-Magnetik's liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with the provisions of this § 9, insofar as fault is involved in each case.
2. list-magnetik shall not be liable
a. in the case of simple negligence on the part of its organs, legal representatives, employees or other vicarious agents;
b. in case of gross negligence of its non-executive employees or other vicarious agents,
as far as it is not a violation of essential contractual obligations. Material contractual obligations are the obligation to deliver and install the goods in a timely manner and free of defects as well as consulting, protection and custody obligations which are intended to enable the customer to use the delivery item in accordance with the contract or which are intended to protect the life and limb of the customer's personnel or third parties or the customer's property from substantial damage.
3. Insofar as List-Magnetik is liable on the merits for damages in accordance with § 9 paragraph 2 of these GTC, this liability shall be limited to damages which List-Magnetik foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or which List-Magnetik should have foreseen taking into account the circumstances of which List-Magnetik was or should have been aware when exercising due care. Indirect damages and consequential damages which are the result of defects of the delivery item shall furthermore only be compensable insofar as such damages are typically to be expected when using the delivery item as intended.
4. in the event of liability for simple negligence, List-Magnetik's obligation to pay compensation for damage to property or personal injury shall be limited to an amount of EUR 3,000,000 per case of damage, even if this involves a breach of material contractual obligations.
5. the above exclusions and limitations of liability shall apply to the same extent in favor of List-Magnetik's executive bodies, legal representatives, employees and other vicarious agents.
6. insofar as List-Magnetik provides technical information or acts in an advisory capacity and such information or advice is not part of the contractual scope of performance owed, this shall be done free of charge and to the exclusion of any liability.
7. The limitations of this § 9 shall not apply to List-Magnetik's liability for intentional conduct, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
 

§ 10. comprehensive reservation of ownership
1. the following agreed reservation of title serves to secure all current and future claims of List-Magnetik against the customer arising from the delivery relationship existing between the contracting parties (including balance claims arising from a current account relationship limited to this delivery relationship). 2. the goods delivered by List-Magnetik to the customer shall remain the property of List-Magnetik until full payment of all secured claims.
2. the goods delivered by List-Magnetik to the customer shall remain the property of List-Magnetik until all secured claims have been paid in full. The goods and the goods covered by the retention of title which take their place in accordance with this clause shall hereinafter be referred to as goods subject to retention of title. 3.
The customer shall store the goods subject to retention of title free of charge for List-Magnetik. 4.
4. the customer shall be entitled to process and sell the goods subject to retention of title in the ordinary course of business until the event of realisation (§ 9 paragraph 9 of these GTC). Pledges and transfers by way of security are not permitted.
5. If the goods subject to retention of title are processed by the customer, the processing shall be carried out in the name and for the account of List-Magnetik as manufacturer and List-Magnetik shall acquire direct ownership or - if the processing is carried out using materials from several owners or the value of the processed item is higher than the value of the goods subject to retention of title - co-ownership (fractional ownership) of the newly created item in the ratio of the value of the goods subject to retention of title to the value of the newly created item. In the event that no such acquisition of ownership should occur for List-Magnetik, the customer already now transfers his future ownership or co-ownership of the newly created item to List-Magnetik as security. If the goods subject to retention of title are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, the customer shall, insofar as the main item belongs to him, transfer to List-Magnetik pro rata co-ownership of the uniform item in the ratio stated in sentence 1.
6. In the event of resale of the goods subject to retention of title, the customer hereby assigns to List-Magnetik by way of security the resulting claim against the purchaser - in the event of co-ownership of List-Magnetik in the goods subject to retention of title, in proportion to the co-ownership share. The same shall apply to other claims which take the place of the reserved goods or otherwise arise in respect of the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. List-Magnetik revocably authorises the customer to collect the claims assigned to List-Magnetik in his own name for the account of List-Magnetik. List-Magnetik may only revoke this authorisation to collect in the event of realisation.
7. if third parties gain access to the goods subject to retention of title, in particular through seizure, the customer shall immediately draw their attention to List-Magnetik's ownership and inform List-Magnetik of this in order to enable List-Magnetik to assert its ownership rights. If the third party is not in a position to reimburse List-Magnetik for the court or out-of-court costs incurred in this connection, the customer shall be liable to List-Magnetik for these.
8. List-Magnetik shall release the goods subject to retention of title as well as the items or claims replacing them upon request at its own discretion insofar as their value exceeds the amount of the secured claims by more than 50 %.
9. if List-Magnetik withdraws from the contract in the event of a breach of contract on the part of the customer, in particular default of payment, List-Magnetik shall be entitled to demand the return of the goods subject to retention of title.
 

§ 11. data protection
The customer acknowledges that List-Magnetik stores data from the contractual relationship in accordance with § 28 of the Federal Data Protection Act for the purpose of data processing and reserves the right to transmit the data to third parties (e.g. insurance companies) insofar as this is necessary for the fulfilment of the contract.
 

§ 12. final provisions
1. The place of jurisdiction for disputes arising from the business relationship shall be Stuttgart. List-Magnetik may also bring legal action at the customer's place of business. Stuttgart shall be the exclusive place of jurisdiction for actions against List-Magnetik. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this.
2. All legal relationships between List-Magnetik and the customer shall be governed by German law applicable to domestic parties to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
If any provision of these General Terms and Conditions is or becomes invalid or unenforceable in whole or in part, the validity of the remaining provisions shall not be affected thereby. The invalid or unenforceable provision shall be replaced with retroactive effect by the valid provision which comes closest to what was intended by both parties when the contract was concluded. The same shall apply in the event of a loophole in the respective contract.