General terms and conditions of sale and delivery
(“Terms of Sale”)
1.1 These terms and conditions of sale shall apply exclusively to our deliveries and services if the customer is an entrepreneur, a legal entity under public law or a special fund under public law. We do not recognise any terms and conditions contrary to or deviating from our Terms and Conditions of Sale – in particular in the Buyer’s terms and conditions of purchase – unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale shall also apply if we carry out the delivery to the customer without reservation in the knowledge of the customer’s terms and conditions that conflict with or deviate from our Terms and Conditions of Sale.
1.2 All agreements, subsidiary agreements and contract amendments must be made in writing. This shall also apply to a cancellation of this written form clause. Oral or written promises which deviate from our terms of sale and/or the order confirmation require the consent of our management to be effective. Our office and field staff have no authority to make deviating agreements or to grant special conditions.
2. offers, contracts
2.1 Our offers are subject to change and lose their validity after 6 months. A contract is only concluded by our written order confirmation or the execution of the order.
2.2 We reserve the right to make minor changes to the products supplied by us or to improve them for the benefit of the customer. The same applies to texts and illustrations in our brochures.
2.3 We reserve the right of ownership and copyright to illustrations, drawings, calculations and other documents. The customer requires our express written consent before passing them on to third parties.
3. delivery and performance, delay
3.1 Delivery periods and dates shall commence on the date of our order confirmation, but not before all technical and other details of the order have been clearly clarified and not before any agreed advance payments have been received.
3.2 The delivery period or date shall be deemed to have been complied with if the delivery item is handed over to the carrier before its expiry or, if the goods cannot be dispatched on time or the service cannot be provided on time through no fault of ours, with notification of readiness for dispatch. Insofar as an acceptance is to take place, the start of acceptance is decisive – except in the case of justified refusal of acceptance – or alternatively the notification of readiness for acceptance.
3.3 If an agreed delivery or performance date is exceeded which is not expressly designated as “fixed” in the order confirmation or if another contractual obligation is not fulfilled in time, the purchaser is initially obliged to set a reasonable deadline for subsequent performance. If we do not deliver even then, the customer is obliged to threaten this with a further period of grace before withdrawing from the contract or claiming damages. This must be in writing. If we demand this, the customer is also obliged to declare within a reasonable period of time whether he will withdraw from the contract due to the delay in delivery or insist on delivery.
3.4 We reserve the right to correct and timely delivery to ourselves. We shall inform the customer as soon as possible of any impending delays.
3.5 Unforeseeable, extraordinary events for which we are not responsible, such as labour disputes, operational disruptions, official measures, transport disruptions or other cases of force majeure, irrespective of whether these events occur at our premises or those of our suppliers, shall release us from the obligation arising from the respective contract; however, obstacles of a temporary nature shall only be for the duration of the obstruction plus a reasonable start-up period. If such events subsequently make delivery impossible or unreasonable for one of the parties, both parties shall be entitled to withdraw from the contract.
3.6 Our liability for damages caused by delay due to a slightly negligent breach of duty is excluded.
3.7 We are entitled to make partial deliveries, provided that these are reasonable for the customer. Partial deliveries will be invoiced separately.
3.8 If dispatch or delivery is delayed at the Purchaser’s request by more than one month after notification of readiness for dispatch, the Purchaser may be charged, for every month commenced, storage costs of 0.5% of the price of the items of the Supplies, but in no case more than a total of 5%. The contractual partners are at liberty to prove higher or lower storage costs.
4. prices and terms of payment
4.1 Unless otherwise stated in the order confirmation, our prices are “ex works”, including loading at the factory, but excluding packaging and unloading; these are invoiced separately.
4.2 All our prices are quoted in Euro and net plus value added tax at the respective statutory rate. Unless expressly agreed otherwise, the customer shall also bear all additional charges, public charges and customs duties.
4.3 The deduction of a discount requires a special written agreement.
4.4 Unless otherwise stated in the order confirmation, the price is due for payment net (without deduction) within 30 days of the invoice date. The statutory regulations concerning the consequences of default of payment shall apply.
4.5 Our claims shall become due immediately if insolvency proceedings are opened over the assets of the purchaser or facts become known which indicate a significant deterioration in the purchaser’s assets. In these cases, we are entitled to demand further deliveries or services from an advance payment or the
to make the provision of appropriate collateral dependent on the provision of appropriate collateral.
4.6 Possibly agreed discounts, rebates or other rebates will not be granted if the customer is in default of payment for earlier deliveries.
4.7 The customer is only entitled to offsetting rights if his counterclaims have been legally established, are undisputed or have been recognised by us. Furthermore, he is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
5. transfer of risk, acceptance
5.1 The risk shall pass to the customer when the delivery item has left the factory, even if partial deliveries are made or we have assumed the shipping costs or other services, e.g. delivery or installation.
5.2 Insofar as acceptance is required, this is decisive for the transfer of risk. It must be carried out immediately on the acceptance date, at the latest, however, after we have notified the readiness for acceptance. The customer may not refuse acceptance in the event of a minor defect.
5.3 If shipment of the goods has been agreed, we shall ship the goods at the risk of the customer, whereby we shall determine the type of shipment, route and carrier.
5.4 If dispatch or acceptance is delayed or not carried out at all due to circumstances not attributable to us, the risk shall pass to the customer on the day of notification of readiness for dispatch or acceptance.
5.5 We undertake to take out appropriate transport insurance at the expense of the customer, at least in the amount of the invoice value of the goods, if the customer requests this in writing.
5.6 Special packaging material will only be taken back and paid for by separate agreement.
6.1 We do not assume any guarantees for the quality of the deliveries or services. Product and performance specifications merely serve to determine the agreed quality within the meaning of §§ 434, 633 BGB. The assumption of a guarantee of quality going beyond this presupposes that we expressly declare in writing that we will assume a guarantee that goes beyond the statutory claims of the purchaser and grants the purchaser claims independent of statutory rights.
6.2 Warranty claims shall not exist in the event of only insignificant deviation from the agreed quality, only insignificant impairment of usability and natural wear and tear.
6.3 The customer shall immediately notify us in writing of any material defects in deliveries and provide us with detailed information about the defect and its effects. Further obligations of the merchant according to § 377 HGB remain unaffected.
6.4 In the event of notices of defects, payments by the purchaser may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The purchaser may only withhold payments if a notice of defect is asserted, the justification of which is beyond doubt. If the notification of defects is unjustified, we shall be entitled to demand reimbursement of the expenses incurred by us from the customer.
6.5 Possible defects will be eliminated by way of subsequent performance. Subsequent performance shall be effected at our discretion by repair or delivery of a defect-free product or production of a defect-free work. The claim for subsequent performance does not include the elimination of defects or malfunctions caused by defects or malfunctions that were caused by the
external influences not foreseen in the contract, operating errors, third-party products brought in by the customer or similar have occurred.
6.6 If the subsequent performance fails, or if we do not remedy a defect within a reasonable period of time set by the customer, the customer may withdraw from the contract or reduce the remuneration without prejudice to any claims for damages. In addition, in the case of contracts for work and services, the customer is entitled to remedy the defect himself and demand reimbursement of the corresponding expenses from us.
6.7 Claims of the purchaser for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded if the expenses increase because the object of the delivery has subsequently been taken to a place other than the purchaser’s branch office, unless the transfer corresponds to its intended use.
7. liability for damages
7.1 Any claims for damages or reimbursement of expenses of the Purchaser (hereinafter referred to as “Claims for Damages”) exceeding the provisions of Clause 6, irrespective of the legal basis, in particular for breach of duties arising from the contractual obligation and from tort, shall be excluded.
7.2 This shall not apply in cases of mandatory liability, e.g. under the Product Liability Act, in cases of intent, gross negligence, injury to life, body or health, or breach of material contractual obligations. However, the claim for damages for the violation of essential contractual obligations is limited to the contract-typical, foreseeable damage, as far as there is no intent or gross negligence or liability for injury to life, body or health.
8. period of limitation
8.1 The limitation period for claims pursuant to clauses 6 and 7 is 1 year. This shall not apply if longer periods are prescribed in accordance with § 438 para. 1 No. 2 (buildings and items for buildings), § 479 para. 1 (right of recourse) and § 634 a BGB (German Civil Code) (building defects) as well as in cases of injury to life, body or health, in the event of a wilful or grossly negligent breach of duty and in the event of claims for damages under the Product Liability Act.
9. reservation of title
9.1 The items of the deliveries (reserved goods) shall remain our property until all claims against the purchaser arising from the business relationship have been fulfilled. If the value of all security interests to which we are entitled exceeds the amount of all secured claims by more than 20 %, we shall release a corresponding part of the security interests at the request of the Purchaser; the choice of which security interests to release shall be at our discretion.
9.2 If the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the reserved goods. The taking back of the reserved goods by us constitutes a withdrawal from the contract. After taking back the reserved goods, we shall be entitled to sell them; the proceeds of such sale shall be set off against the liabilities of the customer – less reasonable costs of sale.
9.3 The customer is obliged to treat the reserved goods with care; in particular, he is obliged to insure them sufficiently at his own expense against theft, breakage, fire and water damage at replacement value. Unless the customer has demonstrably taken out insurance himself, we reserve the right to insure the reserved goods at his expense against theft, breakage, fire, water and other damage. If maintenance and inspection work is necessary, the customer must carry this out in good time at his own expense.
9.4 In the event of seizure or other interventions by third parties, the customer must inform us immediately in writing so that we can take legal action in accordance with § 771 ZPO (German Code of Civil Procedure). Insofar as the third party is not in a position to reimburse us for the legal and extrajudicial costs of a suit in accordance with § 771 ZPO, the customer shall be liable for the loss incurred by us.
9.5 The customer is entitled to resell the reserved goods in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including value added tax) of our claim, which accrue to him from the resale against his customers or third parties, irrespective of whether the reserved goods have been resold without or after processing. The customer remains entitled to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. We undertake, however, not to collect the claim as long as the customer meets his payment obligations from the proceeds received, does not fall into arrears and, in particular, no application for the opening of composition or insolvency proceedings has been made or payments have been suspended. However, if this is the case, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
9.6 The processing or transformation of the reserved goods by the customer is always carried out for us. If the reserved objects are processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the reserved objects (final invoice amount including VAT) to the other processed objects at the time of processing. For the rest, the same shall apply to the object resulting from processing as to the reserved objects.
9.7 If the reserved objects are inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the reserved objects (final invoice amount, including VAT) to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the customer’s item is to be regarded as the main item, it shall be deemed agreed that the customer shall transfer proportional co-ownership to us. The customer shall hold the sole ownership or co-ownership thus created in safekeeping for us.
9.8 The customer also assigns to us the claims for securing our claims against him which arise against a third party through the connection of the reserved objects with a property.
10. embargo regulations
10.1 The customer is responsible for compliance with export and embargo regulations.
11. place of performance and jurisdiction
11.1 The place of performance for all obligations of the purchaser is our registered office.
11.2 The sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered office. We are, however, also entitled to bring an action at the place of business of the customer.
11.3 The legal relations in connection with this contract shall be governed by German substantive law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
12.1 Should individual provisions of these terms and conditions be invalid in whole or in part, the validity of the remaining provisions shall remain unaffected.
12.2 Insofar as these terms and conditions of business are written in German and English, the version written in German is expressly decisive.