General scope of application
(1) These General Terms and Conditions of Sale and Delivery (hereinafter: “GCS”) shall apply to all our business relations with our clients (hereinafter: “Buyer”). The Terms and Conditions of Sale and Delivery shall only apply if the Buyer is an entrepreneur (Section 14 of the German Civil Code “BGB”), a legal entity under public law or a special fund under public law.
(2) The GCS shall apply particularly to agreements on the sale and delivery of movable goods (hereinafter also referred to as: “goods”), regardless of whether we have manufactured the goods ourselves or purchased them from suppliers. The GCS in the version applicable at the time of conclusion of the agreement shall also apply as a framework agreement for future agreements on the sale and delivery of movable goods with the same Buyer, without our having to refer to them again in each case.
(3) Our GCS shall apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the agreement if and to the extent that we have expressly consented to their application in writing. This consent requirement shall apply in any case, also if we carry out the delivery to the Buyer without reservation in knowledge of the Buyer’s general terms and conditions.
(4) Any agreements concluded with the Buyer in individual cases (including ancillary agreements, supplements, and amendments) shall in any case have priority over the GCS. The content of such agreements shall be determined based on the written versions of such agreements or on written confirmations by us, subject to proof to the contrary.
(5) Any legally relevant declarations and notifications of the Buyer with regard to the agreement (e.g. setting of deadlines, reminders, declaration of withdrawal) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Any legal formal requirements and further proof, particularly in case of doubt about the legitimacy of the issuing party, remain unaffected.
(6) Agreements concluded between the Buyer and the manufacturer/supplier within the scope of commission-based transactions shall not be governed by these GCS, but exclusively by the terms and conditions of sale and delivery of the manufacturer/supplier concerned, unless we have agreed otherwise in writing.
(7) All references to the applicability of statutory provisions shall be for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these Terms and Conditions of Sale and Delivery.
Conclusion of contract
(1) Our contractual offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogs, technical documentation (e.g. drawings, plans, estimates, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve property rights and copyrights.
(2) The order of the goods by the Buyer shall be deemed a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within two weeks of its receipt by us.
(3) Acceptance may be declared in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.
Delivery period and delay in delivery
(1) The delivery period shall be agreed individually or stated by us upon acceptance of the order.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (e.g. due to non-availability of the service), we undertake to inform the Buyer of this fact without delay and at the same time notify the Buyer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the agreement in whole or in part, and we shall immediately refund any consideration already paid by the Buyer. A case of non-availability of the service in this sense is particularly the non-timely self-delivery by our supplier, if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault, or we are not obliged to procure in the individual case. Our statutory rights of rescission and termination, the statutory provisions on the performance of the agreement in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance) as well as Section 3 (5) of these GCS shall remain unaffected. The rights of the Buyer pursuant to Sections 9, 10 of these GCS shall also remain unaffected.
(3) The start of our delay in delivery shall otherwise be determined in accordance with the statutory provisions; in any case, however, a reminder by the Buyer setting a reasonable deadline shall be required.
(4) We reserve the right to make a partial delivery if this appears to be expedient for a speedy processing and the partial delivery is not exceptionally unreasonable for the Buyer.
(5) “Force majeure” means the occurrence of an event or circumstance that prevents a party from performing one or more of its obligations under the agreement if and to the extent that the party affected by the impediment demonstrates that: (a) such impediment is beyond its reasonable control and the party is not at fault; and (b) it could not reasonably have been foreseen at the time of entering into the agreement; and (c) the effects of the impediment could not reasonably have been avoided or overcome by the affected party.
Until proven otherwise, the following events affecting a party shall be presumed to meet the conditions designated in (a) and (b) above: (i) war (declared or undeclared), hostilities, attack, acts of foreign enemies, large-scale military mobilization; (ii) civil war, riot, rebellion and revolution, military or other seizure of power, insurrection, acts of terrorism, sabotage or piracy; (iii) monetary and trade restrictions, embargo, sanctions; (iv) lawful or unlawful official acts, compliance with laws or governmental orders, expropriation, seizure of works, requisition, nationalization; (v) plague, epidemic, natural disaster or extreme natural event; (vi) explosion, fire, destruction of equipment, prolonged failure of transportation, telecommunications, information systems or power; (vii) general labor unrest such as boycotts, strikes and lockouts, slowdowns, occupation of factories and buildings.
A party successfully invoking this clause shall be released from its obligation to perform its contractual obligations and from any liability for damages or any other contractual remedy for breach of agreement from the time when the impediment makes it impossible for it to perform if this is notified without delay. If the notice is not given without delay, the release shall take effect from the time when the notice reaches the other party. If the effect of the asserted impediment or event is temporary, the consequences just set forth shall apply only for so long as the asserted impediment prevents performance of the agreement by the affected party. If the duration of the asserted impediment has the effect of substantially depriving the parties of what they had a right to expect by virtue of the agreement, either party shall have the right to terminate the agreement by giving notice to the other party within a reasonable period. Unless otherwise agreed, the parties expressly agree that the agreement may be terminated by either party if the duration of the impediment exceeds 120 days.
Delivery, transfer of risk, acceptance, default of acceptance
(1) Delivery shall be made ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the Buyer’s request and expense, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular, the transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer upon handover at the latest. However, in the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the Buyer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment.
(3) If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to claim compensation for the resulting damage, including additional expenses (e.g. storage costs).
Prices and terms of payment
(1) Unless otherwise agreed in individual cases and subject to the further provisions in this Section 5, our current prices at the time of conclusion of the agreement shall apply.
(2) All prices stated in our offer or in the agreement were calculated based on the applicable purchase, material, and raw material prices at the time of its preparation or conclusion. These therefore represent part of the transaction basis. Since, in exceptional cases, material bottlenecks may occur, resulting in significantly extended delivery times and/or serious changes in the prices of these raw materials and input materials, it cannot be ruled out that this basis of calculation may change significantly and unforeseeably for us by the time of delivery. If, as a result, the previously agreed net price increases or decreases by more than 3%, possibly after offsetting against other increasing or decreasing cost factors, which we can prove upon request, these changes shall be considered in the pricing by way of fair compensation based on partnership. Each contracting party shall therefore have the right to demand that the other renegotiate the prices in good faith within a reasonable period, taking due account of the interests of both parties. In the event of failure of these negotiations, we shall be entitled, in accordance with the statutory rules on the determination of performance by the creditor (Sections 315, 316 of the German Civil Code), to fix a price which reflects the changes and the reasonableness of which is subject to judicial review upon request.
(3) Unless otherwise stated in the order confirmation, our prices shall apply “ex works”. Packaging costs as well as, in the case of a mail order purchase, the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer, any customs duties, fees, taxes and other public charges shall be borne by the Buyer. These costs shall be invoiced separately.
(4) The place of performance for payments is our registered office.
(5) The statutory sales tax is not included in the prices. It is additionally indicated separately in the respective statutory amount and is also to be paid by the Buyer.
(6) The purchase price shall be paid within the agreed payment period. However, we shall be entitled at any time, also within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation; Section 321 of the German Civil Code shall remain unaffected.
(7) Upon expiry of the aforementioned payment period, the Buyer shall be in default. In the event of default in payment, we shall be entitled to charge default interest at the statutory rate, which is currently 9 percentage points above the base interest rate, as well as an additional flat-rate default charge of EUR 40.00. We expressly reserve the right to claim further damages. With respect to merchants, our claim to the commercial due date interest (Section 353 of the German Commercial Code “HGB”) shall remain unaffected.
(8) Insofar as we have granted a right to cash discount, this right shall lapse upon the occurrence of the condition subsequent that, after the cash discount promise for an invoice, another invoice due earlier from the business relationship is not paid within the payment period.
(9) Any bills of exchange or checks shall only be accepted on account of performance. Bank charges and costs for bills of exchange shall be borne by the Buyer.
(10) The Buyer may only offset counterclaims to the extent that they are undisputed, acknowledged by us or have been conclusively determined by a court of law. In the event of defects in the delivery, the Buyer’s counterclaims shall remain unaffected, in particular pursuant to Section 9 of these GCS.
(11) If it becomes apparent after the conclusion of the agreement (e.g. due to a filing for insolvency proceedings) that our claim to the purchase price is jeopardized by the Buyer’s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the agreement. The statutory provisions on the dispensability of setting a deadline shall remain unaffected.
(1) We shall only take back transport packaging if we are obliged to do so by law or based on a law. We shall also only bear the costs of the return shipment insofar as we are obliged to do so by law or based on a law.
(2) The Buyer shall always return any packing materials expressly made available on loan only and shall immediately send them back to us freight prepaid.
Nature of the goods/samples/technical advice/uses
(1) Unless otherwise agreed, the quality of the goods shall be exclusively determined by our product specification. Insofar as we sell products of other manufacturers, the product specification of the manufacturer shall apply in each case. Notwithstanding the above, the goods supplied by us are normally not suitable for the following areas of application, unless expressly stated otherwise: (a) for implants intended to remain in the body of a human being for more than 29 days; (b) for weapons (including chemical weapons as defined in the Chemical Weapons Convention, landmines and landmine components, and any type of explosive device); (c) devices or components used in connection with human reproduction; (d) general-purpose resins in medical or health applications.
(2) The samples provided by us as well as our technical and chemical data serve only as a general description of the goods. They do not contain any guarantee of quality or durability. Performance data specific to the goods, such as dimensions or weight, shall only be binding in the event of a corresponding agreement or confirmation by us.
(3) Insofar as we provide technical application information or operate in an advisory capacity and this information or advice is not part of the contractually agreed scope of performance owed by us, this shall be done free of charge and to the exclusion of any liability except for intent. It does not exempt the Buyer from checking each individual delivery for its suitability for the intended use before processing. The Buyer shall be solely responsible for the application, use and processing of the goods delivered by us as well as for compliance with the applicable safety regulations.
Retention of title
(1) We shall retain title to the goods sold until full payment of all our present and future claims arising from the purchase agreement and an ongoing business relationship (secured claims).
(2) If payment of the purchase price debt by check/bill of exchange procedure has been agreed with the Buyer, the reservation shall also extend to the redemption by the Buyer of the bill of exchange accepted by us and shall not expire by provisional crediting of the check received.
(3) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Buyer shall notify us immediately in writing if and to the extent that third parties seize the goods belonging to us. If the third party is not able to reimburse the judicial or extrajudicial costs incurred by us in this connection, the Buyer shall be liable for them.
(4) The Buyer shall be obliged to store the reserved goods at its own expense with the due care of a prudent businessman and to insure them against the usual storage risks. The Buyer hereby assigns its claims under the insurance contracts to us. We accept the assignment.
(5) In the event of conduct by the Buyer in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the agreement in accordance with the statutory provisions or/and to demand return of the goods based on the retention of title and withdrawal. If the Buyer does not pay the purchase price due, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
(6) If we seize the object of sale, this shall always constitute a withdrawal from the agreement. After taking back the object of sale, we shall be entitled to dispose of it. The proceeds of the sale shall be credited against the Buyer’s liabilities – minus the reasonable costs for the sale.
(7) Until revocation in accordance with (c) below, the Buyer shall be entitled to resell and/or process the goods – subject to the retention of title – in the ordinary course of business. In this case, the following provisions shall apply additionally:
a) The retention of title shall extend to the products resulting from the processing, mixing, or combining of our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing, or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under reservation of title.
b) The Buyer hereby assigns to us by way of security all claims against third parties arising from the resale of the goods or the product in total or in the amount of our co-ownership share, if any, in accordance with the preceding paragraph. We accept the assignment. The Buyer’s obligations set forth in Section 8 (3) of these GCS shall also apply in respect of the assigned claims.
c) The Buyer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim if the Buyer meets its payment obligations towards us, there is no deficiency in its ability to perform and we do not assert the retention of title by exercising a right pursuant to Section 8 (5) of these GCS. In the event of the occurrence of one of the aforementioned deficiencies in performance on the part of the Buyer, we may demand that the Buyer disclose to us the assigned claims and their debtors, provide us with all information necessary for collection, hand over the relevant documents and notify the debtors (third parties) of the assignment. Furthermore, in this case we shall be entitled to revoke the Buyer’s authorization to further sell and process the goods subject to retention of title.
d) We shall release the excess securities at our discretion upon the Buyer’s request if the value of the securities exceeds the total of our claims by more than 10%.
Claims for defects; notices of defects
(1) The statutory provisions shall apply to the rights of the Buyer in the event of material defects and defects of title (including wrong delivery and under-delivery), unless otherwise provided below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier recourse pursuant to Sections 445a, 478 BGB). Any claims arising from supplier’s recourse shall be excluded if the defective goods have been further processed by the Buyer or another entrepreneur, e.g. by incorporation into another product.
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. Insofar as the quality has not been agreed, it is to be assessed according to the statutory regulation whether a defect exists or not (Section 434 Para. 1 p. 2 and 3 BGB).
(3) As a rule, we shall not be liable for defects of which the Buyer is aware at the time of conclusion of the agreement or is not aware due to gross negligence (Section 442 BGB). Furthermore, the Buyer’s claims for defects presuppose that the Buyer has complied with its statutory obligations to inspect the goods and give notice of defects (Sections 377, 381 of the German Commercial Code “HGB”). In the case of materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent during the inspection or later, we must be notified of this immediately in writing. If the Buyer fails to carry out the proper inspection or to notify us of the defect, our liability for the defect not notified shall be excluded. In the case of partial deliveries, this obligation of the Buyer shall apply to each individual partial quantity.
(4) Should the delivered item be defective, we may initially choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
(5) We shall be entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
(6) The Buyer is obliged to give us the time and opportunity necessary for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions. The supplementary performance shall neither include the removal of the defective item nor its re-installation if we were not originally obliged to install the item.
(7) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if there is actually a defect. Otherwise, we may demand reimbursement from the Buyer of the costs incurred because of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defects was not apparent to the Buyer.
(8) If the supplementary performance has failed or a reasonable deadline to be set by the Buyer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase agreement or reduce the purchase price. In the case of an insignificant defect, however, there shall be no right of withdrawal.
(9) Any claims of the Buyer for damages or reimbursement of expenses incurred in vain, even in case of defects, shall only be valid in accordance with Section 10 and shall otherwise be excluded.
(1) We shall be liable for damages – irrespective of the legal grounds – in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in own affairs), for the following cases:
a) for damages resulting from injury to life, body, or health as well as
b) for damages resulting from the breach of an essential contractual obligation (an obligation whose fulfilment enables the proper execution of the agreement in the first place and on whose observance the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to the compensation of the foreseeable, typically occurring damages.
(2) The above-mentioned limitations of liability shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. Any other mandatory statutory liability provisions, in particular according to the provisions of the Product Liability Act, shall remain unaffected.
(3) To the extent that our liability is excluded or limited, this shall also apply regarding the personal liability of our employees, representatives, and vicarious agents.
Statute of limitation
(1) Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) Section 11 para. 1 of these GCS shall not apply if special statutory provisions on limitation apply (in particular Section 438 para. 1 no. 1 and no. 2, para. 3, Sections 444, 445b BGB).
(3) The above-mentioned limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would result in a shorter limitation period in the individual case. Any claims for damages of the Buyer pursuant to Section 10 (1) and (2) of these GCS shall become time-barred exclusively in accordance with the statutory limitation periods.
Applicable law, place of jurisdiction, partial invalidity
(1) These GCS and all legal relations between us and the Buyer shall be governed by the laws of the Federal Republic of Germany, to the exclusion of the provisions of private international law and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(2) The exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the court responsible for our place of business. This shall only apply if the Buyer is a merchant within the definition of the German Commercial Code, a legal entity under public law or a special fund under public law. However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation pursuant to Section 4 para. 1 of these GCS or a prior individual agreement or at the Buyer’s general place of jurisdiction. Any overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.