§ 1 General Scope
(1) These General Terms and Conditions of Sale and Delivery shall apply to all business relations with our customers (hereinafter: “buyers”). The Terms and Conditions of Sale and Delivery shall apply only if the buyer is an entrepreneur (§ 14 BGB [German Civil Code]), a legal person under public law or a special fund under public law.
(2) The Terms and Conditions of Sale and Delivery shall apply in particular to contracts on the sale and delivery of movables (hereinafter also referred to as: goods), irrespective of whether the goods are manufactured by the seller himself or purchased by him from suppliers. The Terms and Conditions of Sale and Delivery, as amended, shall, as a master agreement, also apply to future contracts on the terms and conditions of sale and delivery of movables entered into with the same buyer, without us having to make reference to them in each case.
(3) Our Terms and Conditions of Sale and Delivery shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of business of the buyer will become part of this agreement only and insofar as their validity has been expressly approved by us in writing. This requirement of approval shall apply in any event, in particular also in the event that we, being aware of the customer’s general terms and conditions, execute delivery to the buyer without reservation.
(4) Agreements concluded with the buyer in individual cases (including side-agreements, supplements and modifications) shall prevail in any case over the Terms and Conditions of Sale and Delivery if they have been laid down in a written contract or if our written confirmation has been obtained. Material declarations and notifications of the buyer to be made towards us after conclusion of the contract (e.g. deadlines, reminders, declaration of withdrawal), require the text form in order to be valid.
(5) In the case of commission business, the terms and conditions of sale and delivery of the relevant manufacturer/supplier shall be valid exclusively, unless differently agreed upon in writing between us.
(6) Our sales employees are not authorized to enter into side-agreements or make verbal assurances. Validity of stipulations regarding authorization of employees in shops or warehouses, which are alterable by mutual consent, is explicitly excluded.
§ 2 Conclusion of Contract
(1) Our contractual offers are subject to change and non-binding.
(2) The ordering of goods by the buyer is considered to be a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this offer of contract within two weeks after its receipt by us.
(3) Such acceptance may be expressed in text form (e.g. by way of order confirmation) or by effecting delivery of the goods to the buyer.
§ 3 Term of Delivery and Delay in Delivery
(1) The term of delivery is individually agreed or provided by us upon acceptance of the order.
(2) If “prompt” delivery has been agreed, the term of delivery shall be 14 calendar days.
(3) Should we fail to comply with binding terms of delivery for reasons beyond our control (non-availability of performance), we shall inform the buyer accordingly without delay and at the same time communicate the estimated new term of delivery. Should the performance still be unavailable within the new term of delivery, we shall be entitled to withdraw from the contract in full or in part; any consideration already provided by the buyer will be reimbursed by us without delay. Non-availability of performance to this effect in particular includes cases where our supplier fails to deliver us in good time if we have entered into a congruent covering transaction. Our statutory rights of withdrawal and cancellation as well as the legal requirements with regard to the settlement of the contract after preclusion of the performance obligation remain unaffected. In the same way, the rights of withdrawal and cancellation of the buyer in accordance with § 9 of these Terms and Conditions of Sale and Delivery remain unaffected.
(4) We reserve our right to make a partial delivery if this seems to be in the interests of the prompt processing of the order and such partial delivery is not, for once, unacceptable for the buyer.
(5) Upon the occurrence of a delay in delivery, the buyer shall set us a reasonable period of grace of at least two weeks. Apart from that, the occurrence of delay in delivery is determined by the relevant statutory provisions. A reminder by the buyer shall be required in all cases, however.
(6) Obstacles to delivery, wars, strikes, lockout, raw material or energy shortage, operational and traffic disruptions, orders from high authorities, as well as all other events of force majeure which may prevent or delay or make uneconomical the manufacturing or shipment of the goods shall exempt us from the duty to deliver for the duration and to the extent of the disruption. If the disruption exceeds the duration of three months, we shall be entitled to withdraw. In the event of partial or complete loss of our procurement sources due to force majeure in the above sense, we shall not be obliged to stock up from other pre-suppliers. In this case, we shall be entitled to distribute the existing quantity of goods under consideration of our own demand and our own delivery obligations.
§ 4 Delivery, Transfer of Risk, Acceptance and Delay in Acceptance
(1) Delivery is ex warehouse, which shall be the place of performance. Upon request and to the expenses of the buyer, the goods may be shipped to another destination (sale to destination). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipment route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass on to the buyer as soon as the products are handed over to the buyer. In the event of a sale to destination, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay in delivery will pass on to the forwarding agent, the carrier, or any other person or institution charged with the execution of the shipment already upon delivery of the goods to the forwarding agent.
(3) Goods on call shall be accepted by the buyer within 10 weeks as of the conclusion of the contract, unless expressly agreed otherwise. Should the buyer not call up the goods on time, he will be in default of acceptance after expiry of a further period of extension of two weeks set in writing.
(4) In the event that the buyer is in default of acceptance, omits to carry out an act of co-operation, or our delivery is delayed for other reasons for which the buyer is accountable, we will be entitled to request compensation for the arising damages including additional expenses (e.g. storage costs).
§ 5 Prices and Terms of Payment
(1) Unless otherwise agreed for individual cases, our prices shall be the current prices at the time of the conclusion of the contract in each case.
(2) This is not valid if the goods are to be delivered after a period of four months as of conclusion of the contract. In this case, the prices at the time of delivery shall apply unless these are non-standard market prices.
(3) In the absence of agreements to the contrary, minimal quantities shall be subject to a minimum volume charge.
(4) Unless otherwise stated in the order confirmation, our prices are quoted “ex works”. Packaging costs as well as transportation costs ex warehouse in the case of a sale to destination, and the costs for transport insurance if requested by the buyer, any possible customs duties, fees, taxes and other public charges shall be borne by the buyer. These costs will be invoiced separately.
(5) Place of performance for our payments is our place of business.
(6) The statutory sales tax is not included in the prices. It is separately stated on the invoice at the applicable statutory rate and is also payable by the buyer.
(7) If the aforementioned payment period lapses, the buyer will be in default. In the event of default of payment, we shall be entitled to charge default interest at the statutory rate, which currently amounts to 9 percent above the base rate, as well as an additional flat consultancy charge of € 40.00. We expressly reserve the right to assert further damages.
(8) Insofar as we have granted a right for cash reduction, this right will lapse upon occurrence of the condition subsequent that, after having granted this right for cash reduction, another invoice from our business relationship with an earlier due date will not have been balanced.
(9) Bills of exchange or cheques will be accepted on account of payment only. Bank charges and exchange costs shall be borne by the buyer.
(10) The buyer can only offset to such counter-claims which are uncontested, have been acknowledged by us or have been recognized by declaratory judgment.
(11) If, after the conclusion of the contract, it becomes apparent that our claim to the purchase price is at risk owing to the buyer’s lack of financial capacity, we shall be entitled, in accordance with the statutory provisions, to refuse performance and – where applicable after the setting of a deadline – to withdraw from the contract. The statutory provisions concerning the dispensability of setting a deadline remain unaffected.
(12) In the same way, we are entitled to revoke agreed payment targets and to demand advance payments or securities for further deliveries in cases of justified doubts regarding the financial solvency or creditworthiness of the buyer.
§ 6 Packaging
(1) Transport packaging will be taken back by us insofar as required by law or legal provisions.
(2) Return costs will also be borne only insofar as required by law or legal provisions.
(3) Any packaging made available expressly on a loan basis shall be returned by the buyer and sent back immediately to the seller free of transportation charges.
§ 7 Quality of Goods/Samples/Technical Advice/Usage
(1) Unless otherwise agreed, the quality of the goods shall be derived exclusively from our product specification. Insofar as we sell products produced by other manufacturers, the product specification of the manufacturer shall be valid in each case.
(2) Samples as well as technical and chemical specifications provided by us only serve as a general description of the goods. They imply no guarantee as to the quality or durability and shall not exempt the buyer from the inspection of each individual delivery.
(3) Product-specific performances such as dimensions or weights shall only be binding upon express written agreement or upon confirmation of the seller in text form.
(4) The technical advice we provide on the application of our products to the best of our knowledge is non-binding and does not exempt the buyer from verifying each individual delivery regarding its suitability for the intended application before it is processed. The responsibility for the application, the use and the processing of the goods delivered by us as well as for the adherence to the applicable safety regulations are the sole responsibility of the buyer.
§ 8 Retention of Title
(1) Sold products shall remain in our property until all current and future claims resulting from the purchase contract and a current business relation with the customer (secured claims) have been paid in full.
(2) In the case of open accounts, the retention of title of the deliveries shall be a security for the balance owed to us by the buyer. Insofar as it has been agreed with the buyer that settlement of the purchase price shall be on the basis of the cheque/bill of exchange procedure, this retention of title shall also extend to the encashment by the buyer of the bill of exchange accepted by us and will not expire as a result of the preliminary crediting of the received check.
(3) The goods subject to retention of title may neither be attached nor assigned as security to third parties until full payment of the secured claims has been made. The buyer is obliged to inform us promptly in text form if and insofar as third parties have access to the goods belonging to us. Justified intervention expenses shall be borne by the buyer.
(4) Processing or transformation of the delivered goods undertaken by the buyer shall always be on our behalf. Where the delivered goods are processed together with other goods not in our possession, we shall acquire co-ownership of the new items in proportion of the value of the delivered goods with respect to the other processed goods at the time of processing. Apart from that, the items created through processing shall be subject to the same provisions as the goods delivered under retention of title.
(5) Where the delivered goods are inseparably mixed or combined with other goods not in our possession, we shall acquire co-ownership of the new items in proportion of the value of the delivered goods with respect to the other mixed goods at the time of mixing. Where mixing is undertaken to the effect that the items of the buyer are to be regarded as the main items, it shall be deemed to have been agreed that the buyer shall transfer pro-rata co-ownership to us. The buyer shall keep safe the sole or co-ownership thus created on our behalf.
(6) The buyer is obliged to keep safe the reserved goods on his own expense with the care of a diligent businessman and to insure them against the normal storage risks. He assigns his claims from the insurance contracts to us already now. We accept the assignment.
(7) If the buyer acts in breach of the contract, in particular in the event of non-payment of the due purchase price, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and on the basis of withdrawal. Where the buyer fails to pay the due purchase price, we shall be entitled to assert these rights only after having set a reasonable payment deadline for the buyer without success, or if the setting of such deadline is dispensable in accordance with legal requirements.
(8) Attachment of the object of sale by us shall always mean a withdrawal from the contract. After recovery of the object of sale, we are entitled to realization. The realization proceeds shall be deduced from the obligations of the buyer – less appropriate exploitation costs.
(9) The buyer is entitled to resell the goods subject to retention of title in the ordinary course of business.
In this case, the following provisions shall apply in addition:
a) The buyer assigns the claims from the resale of the goods or products against third parties already now in whole or to the amount of our approximate share of co-ownership after processing, mixing, etc. to us as a security. We accept the assignment.
b) Other assignments, also within the framework of factoring, are not permitted.
c) Beside ourselves, the buyer remains authorized to the collection of the claim. We undertake not to collect the claim as long as the buyer fulfills his payment obligations towards us, is not in default auf payment, no application for the opening of insolvency proceedings has been made, and there is no other deficiency in his performance capacity. In the event that one of the aforementioned deficiencies in performance occurs on the part of the buyer, we may demand that the buyer notifies us of the assigned claims and their debtors, provides us with all the particulars required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(10) If the value of the securities exceeds the sum of the claims by more than 10 %, we shall release the excess securities of our choice upon request of the buyer.
§ 9 Notification of Defects/Claims for Defects
(1) For the rights in case of defects of quality and defects of title (including wrong and short delivery), the statutory provisions apply shall unless otherwise agreed in the following.
(2) Warranty claims by the buyer require that he has satisfied his statutory obligations of inspection and notification of defects (§§ 377, 381 HGB [German Commercial Code]). In the event that a defect is revealed during the inspection or subsequently, we must be notified accordingly in text form without delay. The notification is considered to be immediate if it is made within two weeks, whereby this deadline is deemed to be met if the notification has been sent off in good time. Independent of this obligation of inspection and notification of defects, the buyer shall report obvious defects (including wrong and short delivery) in writing within a period of two weeks as of delivery, whereby here, too, the deadline is deemed to be met if the notification has been sent off in good time. Should the buyer fail to conduct proper inspection or to report a defect, liability by us for the defect not reported shall be excluded. In the event of partial delivery, this obligation of the buyer relates to each partial quantity.
(3) Hidden defects shall be reported by the buyer immediately after their detection and no later than 12 months following handover.
(4) A notification of a defect shall not entitle the buyer to withhold due payments or to refuse acceptance of further deliveries.
(5) In the event of timely and justified notification of defects, the buyer’s claims for defects shall be limited in the first instance to the right of subsequent performance.
(6) Within the scope of subsequent performance, we shall be entitled to choose between replacement and rectification.
(7) If the subsequent performance on our part is unsuccessful, the buyer may choose to either reduce the purchase price or to withdraw from the contract. Claims for damages in accordance with § 10 shall remain unaffected.
(8) The warranty period shall be one year from delivery of the goods, unless mandatory legal provisions stipulate a longer period of limitation.
(9) We do not guarantee that the product is free from patents or other property rights of third parties.
§ 10 Further Liabilities
(1) We shall be liable for damages – irrespective of the legal grounds – in the case of willful intent and gross negligence. In the case of simple negligence, we shall be liable only
a) for damages arising from injury to life, body or health,
b) for damages from a breach of a material contractual obligation (an obligation the proper fulfillment of which constitutes a condition sine qua non for the performance of the contract and on the fulfillment of which the customer regularly relies and may rely); whereas in this case, our liability is restricted to the compensation of foreseeable, typically occurring damages.
(2) The above limitations of liability shall not apply insofar as we have fraudulently concealed a defect or have accepted a warranty for the quality of the goods. Other mandatory statutory liability provisions, in particular in accordance with provisions of the German Product Liability Act [Produkthaftungsgesetz] shall remain unaffected.
(3) Insofar as our liability is excluded or limited, this shall also apply with regard to the personal liability of our employees, workers, personnel, legal representatives and vicarious agents.
(4) Withdrawal or cancellation on behalf of the buyer based on a violation of duty which does not consist in a defect shall be permissible only if we are responsible for the violation of duty. A free right of cancellation for the buyer (in particular in accordance with §§ 651 and 649 BGB) is excluded. Apart from that, the legal conditions and consequences shall apply.
§ 11 Applicable Law, Place of Jurisdiction, Partial Invalidity
For these Terms and Conditions of Sale and Delivery and for all legal relations between us and the buyer, the law of the Federal Republic of Germany shall apply, and the rules of private international law and of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded. The exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the competent court for our place of business. We shall, however, also be entitled to take legal action at the place of general jurisdiction of the buyer.