General terms of sales
Effective January 1st, 2016
(1) These General Terms and Conditions of Sale (hereinafter referred to as the GTCS) apply for the conclusion of contracts with companies, Sec. 310 para. 1 BGB [German Civil Code] and legal entities under public law or public law special funds.
(2) Terms and conditions of the Purchaser or third parties, in particular the Purchaser’s terms and conditions of purchase, shall not apply, even if the Seller does not specifically object to their validity in the individual case. Even if the Seller refers to correspondence that contains the terms and conditions of the Purchaser or a third party, this does not constitute acceptance of the validity of such terms and conditions.
(3) These Terms and Conditions of Sale shall also apply to all future transactions with the Purchaser as the ordering party, insofar as this concerns a legal transaction of a similar nature.
(4) References to the application of statutory provisions are only for clarification purposes. Therefore, even without such clarification the statutory provisions shall apply insofar as they are not directly modified or excluded in these GTCS.
2. OFFER AND CONTRACT CONCLUSION
(1) All offers from the Seller are subject to change without notice and without obligation, insofar as they are not specifically marked as binding or contain a specific deadline. This shall also apply if the Seller provides the Purchaser with catalogues, technical documentation (e.g. drawings, plans, calculations, instructions, and references to DIN standards), other product descriptions or documents for which property rights and copyrights are reserved.
(2) The goods order from the Purchaser is a binding contractual offer. The Seller can accept this offer within two weeks.
(3) Only the written sales contract, including these terms and conditions, is of decisive relevance to the legal relations between the Seller and the Purchaser. These stipulate all agreements between the parties on the subject of the contract in full.
(4) Agreements made in the individual case with the Purchaser (including any ancillary agreements, amendments or supplements) take precedence over these GTCS in all cases. A written contract and written confirmation from the Seller are decisive for the contents of such agreements, subject to evidence to the contrary.
(5) Details provided by the Seller regarding delivery or performance (e.g., weights, dimensions, use values, capacity, tolerances and technical data), and the representations of the same (e.g. drawings and illustrations) are only approximately authoritative, insofar as usability for the contractual purpose does not require an exact match. These are not guaranteed quality specifications but rather descriptions or identifications of the delivery or performance. Standard commercial differences and deviations due to legal provisions or technical improvements, as well as the replacement of components by equivalent parts, are permitted insofar as usability for the contractual purpose is not affected.
3. DOCUMENTS PROVIDED
(1) The Seller reserves the right to ownership and copyright for all offers and price quotations it submits as well as drawings, illustrations, calculations, prospectuses, catalogues, models, tools and other documents and resources made available to the Purchaser.
(2) The Purchaser may not use these items as such without the express consent of the Seller or to forward or disclose the content of these to third parties, to use or reproduce them itself or to allow them to be used or reproduced by third parties. It must return these items in full at the request of the Seller and destroy any copies, if they are no longer required by the Purchaser in the ordinary course of business.
(3) Insofar as the Seller does not accept an offer from the Purchaser within the deadline period under Sec. 2 para. 2, the documents provided to the Seller in this context are to be returned immediately.
4. DELIVERY PERIOD AND DELIVERY DELAY
(1) The delivery period shall be agreed individually or stipulated by the Seller at the time of acceptance of the order.
(2) Compliance with the delivery period by the Seller assumes that all commercial and technical questions between the parties have been resolved and the Purchaser has fulfilled all of its obligations. If this is not the case, the delivery time shall be extended appropriately, unless the Seller is responsible for the delay.
(3) Insofar as the Seller cannot comply with binding delivery deadlines for reasons beyond its control (non-availability of performance), the Purchaser shall be informed of this immediately stating a likely new delivery deadline at the same time. If performance is not available within the new delivery deadline, it is entitled to withdraw from the contract in whole or in part; consideration already rendered by the Purchaser shall be refunded immediately. In the case of non-availability of performance in this sense, particularly in the case of late self-delivery by their suppliers, if a congruent hedging transaction has been concluded, neither the Seller nor your supplier is liable and the Seller is not subject to a procurement obligation in individual cases. A congruent hedging transaction exists if on the day of conclusion of the purchase the Seller holds a supply contract which, in objective terms, is such that seamless delivery can be made to its Purchaser with the same security of supply as was promised.
(4) In the event of temporary impediments, the delivery or service deadlines are extended or delivery or performance dates are postponed for the period of the impediment plus a reasonable starting period. The Seller shall inform the Purchaser of the delivery delay as well as the expected new delivery date in writing immediately and on a regular basis.
(5) The occurrence of default of delivery by the Seller shall be determined in accordance with the statutory provisions of the Federal Republic of Germany. In any case, however, a reminder must be issued by the Purchaser. The rights of the Purchaser in accordance with Sec. 9 of these GTCS and the legal rights of the Seller, particularly in the case of an exclusion of liability (e.g. due to impossibility of performance or unreasonableness of performance and/or subsequent performance), remain unaffected
5. DELIVERY, TRANSFER OF RISK, ACCEPTANCE, ACCEPTANCE DELAY
(1) The delivery is made ex warehouse, wherever the place of performance for delivery and any subsequent fulfilment is. At the request and expense of the Purchaser, the goods shall be sent to another destination (sales shipment). If not otherwise agreed, the Seller is entitled to determine the method of shipment itself (in particular transport companies, dispatch route, packaging).
(2) Sorted and, in the case of combinations, partial deliveries ready for sale are permissible, insofar as this is reasonable for the Purchaser or has been previously announced. Unsorted partial deliveries are only permitted with the consent of the Purchaser.
(3) The risk of accidental loss and accidental deterioration of the goods is transferred at the latest upon delivery to the Purchaser. In the case of sales shipment, however, the risk of accidental loss and accidental deterioration of the goods as well as the delay risk is already transferred upon delivery of the goods to the forwarder, the freight carrier or other person or institution contracted to perform the shipment. If acceptance is agreed, this shall be decisive for the transfer of risk. Furthermore, the statutory provisions under contract law of the Federal Republic of Germany shall apply accordingly for an agreed acceptance. The handover or acceptance is the same if the Purchaser is in default of acceptance.
(4) If the Purchaser is in default of acceptance, fails to act in cooperation or if delivery is delayed for any other reason attributable to the Purchaser, the Seller is entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). Flat-rate compensation in the amount of 0.5% per calendar week up to a maximum total of 5% of the agreed purchase price in the case of final non-acceptance shall be charged.
(5) Proof of greater damages and the statutory entitlements (in particular the reimbursement of additional expenses and adequate compensation, termination) remain unaffected. However, the flat-rate is to be offset against any further monetary claims.
(6) The Purchaser shall produce evidence that the Seller did not incur damages or only incurred significantly less damage than the above flat rates.
6. PRICES AND TERMS OF PAYMENT
(1) If not otherwise agreed in an individual case, the Seller’s current prices at the time of conclusion of the contract shall apply, ex warehouse plus statutory VAT.
(2) Packaging costs for special packaging, such as sleeves etc., are borne by the Purchaser, unless the Contracting Parties agree otherwise in this regard.
(3) For contracts of sale (Sec. 5 para. 1 sentence 2) the Purchaser shall bear the transport costs ex warehouse and any transport insurance desired by the Purchaser. Any duties, fees, taxes and other public levies shall be borne by the Purchaser.
(4) The purchase price is due and payable within 14 days from the date of invoice and delivery or acceptance of the goods. However, the Seller is also entitled at any time to deliver in whole or in part only against advance payment, even in the context of an ongoing business relationship. A corresponding reservation shall be stipulated at the latest upon confirmation of the order.
(5) Upon expiry of the above payment period, the Purchaser shall be in default of payment. The purchase price is subject to interest during the default period at the respectively applicable statutory default interest rate. The Seller reserves the right to assert claims for further damages caused by default. In regard to merchants, its entitlement to commercial maturity interest remains unaffected.
(6) The Purchaser is only entitled to rights of offset or retention to the extent that his claims have been legally established or are undisputed. In the case of defects in the delivery, the reciprocal rights of the Purchaser, in particular according to Sec. 8 para. 6 sentence 2 GTCS remain unaffected.
(7) If, following conclusion of the contract, it is identified (e.g. by application for the opening of insolvency proceedings) that the Seller’s claim to the purchase price is endangered by a lack of solvency on the part of the Purchaser, the Seller is entitled in accordance with the statutory provisions to refuse performance and – where appropriate after setting a grace period -to withdraw from the contract (Sec.321 BGB [German Civil Code]). In the case of contracts for the manufacture of specific items (unique products), the Seller can withdraw immediately. However, the statutory regulations concerning the dispensability of setting a deadline remain unaffected.
7. RESERVATION AND OWNERSHIP
(1) Up to the complete payment of all current and future receivables owed to the Seller arising from the purchase contract and an ongoing business relationship (secured receivables), the Seller shall retain title for the goods sold.
(2) The goods subject to retention of title may not be pledged to third parties or transferred as security prior to full payment of the secured receivables. The Purchaser is to inform the Seller immediately in writing if an application for the opening of insolvency proceedings is submitted or of access by third parties to items and claims belonging to it (e.g. through pledges).
(3) In the case of behaviour by the Purchaser that is contrary to the contract, in particular default in payment by the Purchaser, the Seller shall withdraw from the contract and/or demand the surrender of the goods to which it holds title according to the statutory provisions. The request for surrender does not automatically contain the statement of withdrawal but rather the Seller shall only be entitled to demand surrender of the goods and reserve its right of withdrawal. If the Purchaser does not pay the purchase price due, it may only assert such rights if it had previously set an unsuccessful reasonable grace period for the Purchaser or if such a period is unnecessary according to the statutory provisions.
(4) The Purchaser is entitled to continue to sell and/or process all goods subject to retention of title in the orderly course of business up until withdrawal according to (c) below. In this case, the following provisions shall additionally apply:
(a) The retention of title extends to products resulting from processing, mixing or combining the Seller’s goods to their full value, whereby the Seller shall be considered the manufacturer. If title is retained under property law in the case of processing, mixing or combining with third party goods, the Seller shall acquire co- ownership in accordance with the invoice value of the processed, mixed or combined products. Furthermore, the same applies for the resulting product as for the goods delivered under retention of title.
(b) The Purchaser already assigns receivables from third parties resulting from the sale of the goods or products to the Seller in full or in the amount of the Seller’s co-ownership share in accordance with the previous paragraph as security. This assignment is accepted by the Seller. The Purchaser’s obligations stated in para. 2 shall also apply in respect of the assigned claims.
(c) In addition to the Purchaser, the Seller shall also be authorised to recover receivables. It undertakes not to collect the receivable as long as the Purchaser fulfils its payment obligations toward the Seller, there is no lack of performance and the retention of title is not asserted through the exercise of a right according to para. 3. However, if this is the case, the Seller can demand that the Purchaser provides all information on the assigned claims and its debtors required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, it is also entitled in this case to revoke the Purchaser’s right to further sale and processing of the goods under retention of title.
(d) If the realisable value of the securities exceeds the Seller’s receivables by more than 10%, at the request of the Purchaser securities shall be released at its discretion.
8. WARRANTY CLAIMS OF THE PURCHASER
(1) For the rights of the Purchaser in the case of material and legal defects (including incorrect and short delivery as well as improper installation or improper assembly instructions), the legal provisions shall apply, if not otherwise stipulated hereinafter. In all cases, the statutory special provisions for final delivery of the goods to a consumer (supplier recourse according to Sec.478, 479 BGB [German Civil Code) remain unaffected.
(2) The basis for liability for defects on the part of the Seller is, above all, the agreement regarding the condition of the goods. All product descriptions which are part of the individual contract are considered to be an agreement regarding the condition of the goods; regardless of whether the description of the product comes from the Purchaser, the manufacturer or the Seller.
(3) Insofar as the condition has not been agreed, it is to be assessed whether a defect is present or not in accordance with the statutory regulations (Sec. 434 para. 1 sentence 2 and 3 BGB [German Civil Code]). However, the Seller does not accept any liability for public statements made by the manufacturer or other third parties (e.g. advertising).
(4) The Purchaser must inspect the goods received for defects immediately. The Purchaser is to inform the Seller of obvious defects without delay, at the latest within four (4) working days (Monday to Friday) of receipt and of hidden defects without delay, at the latest within seven (7) working days of discovery in writing. If the Purchaser fails to properly inspect for defects and/or inform of defects, the liability of the Seller for the defects of which it has not been informed is excluded.
(5) If the delivered item is defective, the Seller can choose whether to provide subsequent fulfilment by elimination of the defect (repair) or by delivery of a defect-free item (replacement). Its right to refuse subsequent fulfilment under the statutory conditions remains unaffected.
(6) The Seller is entitled to perform the subsequent fulfilment owed subject to the condition that the Purchaser pays the purchase price due. However, the Purchaser is entitled to retain an appropriate share of the purchase price in relation to the defect.
(7) The Purchaser must afford the Seller the required time and opportunity to perform the subsequent fulfilment owed and in particular to hand over the disputed goods for the purposes of inspection. In the case of replacement, the Purchaser is to return the defective item in accordance with the statutory provisions. Supplementary performance does not include removal of the defective goods or re-installation, if the Seller was not originally obliged to perform the installation.
(8) The expenses necessary for the purpose of inspection and subsequent fulfilment, in particular transport, travel, labour and material costs (not: removal and installation costs) are borne by the Seller, if indeed a defect is present. Otherwise, the Seller can demand reimbursement from the Purchaser of costs incurred for the unjustified request for rectification of a defect (in particular inspection and transport costs), unless the lack of defect was not recognisable by the Purchaser.
(9) In urgent cases, e.g. in the case of risk to operating safety or in order to prevent disproportionate damage, the Purchaser has the right to eliminate the defect itself and to demand reimbursement of these objectively necessary expenses from the Seller. Notification of such self-action must be given immediately and if possible in advance. The Purchaser’s right to take action itself does not exist if the Seller would have been entitled to refuse subsequent fulfilment in accordance with the statutory provisions.
(10) If the subsequent fulfillment fails or if the deadline set for subsequent fulfillment by the Purchaser expires unsuccessfully or is dispensable in accordance with the statutory provisions, the Purchaser can withdraw from the contract or reduce the purchase price. In the event of a minor defect, however, there is no right of withdrawal.
(11) The Purchaser’s entitlements to damages or reimbursement of expenses also exist in the case of defects only in accordance with the provisions of Sec. 9 and are otherwise excluded.
9. OTHER LIABILITY
(1) Unless otherwise provided for in these GTCS including the following provisions, the Seller shall be liable in the event of a breach of contractual or non-contractual obligations in accordance with the statutory provisions.
(2) The Seller is liable for damages – regardless of the legal basis – within the context of culpable liability in the case of intent and gross negligence. In the event of minor negligence, the Seller shall only be liable subject to a milder scale of liability in accordance with statutory regulations (e.g. for care in its own affairs).
(a) For damages incurred due to injury of life, body or health,
(b) For damage resulting from significant breach of an essential contractual obligation (an obligation of which proper fulfilment is essential for the proper execution of the contract and compliance with which the customer regularly relies on and may rely); in this case, the liability of the Seller is limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from para. 2 shall also apply in the event of breaches of duty by or in respect of persons for whom the Seller is liable in accordance with statutory regulations. They shall not apply, insofar as the Seller fraudulently conceals a defect or undertakes to guarantee the condition of the goods and for claims of the Purchaser in accordance with the Product Liability Act.
(4) The Purchaser can only withdraw from or terminate the contract due to a breach of duty which does not consist of a defect, if the breach of duty is attributable to the Seller. A free right of termination on the part of the Purchaser (in particular according to Sec. 651, 649 BGB [German Civil Code]) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.
10. PERIOD OF LIMITATION
(1) By way of derogation from the provisions of Sec. 438 para. 1 No. 3 BGB [German Civil Code], the general limitation period for claims for material and legal defects is one year from delivery. If acceptance is agreed, the period of limitation begins upon acceptance.
(2) However, if the product is a building or an object that, acccording to its normal manner of use, was used for a building and caused its defectiveness (building materials), the limitation period in accordance with the statutory regulation is five years from delivery (Sec. 438 para. 1 No. 2 BGB [German Civil Code]). Further statutory special regulations regarding the period of limitation (esp. Sec. 438 para. 1 No. 1, para. 3, Sec. 444, 479 BGB [German Civil Code]) also remain unaffected.
(3) The above periods of limitation for the right of purchase shall also apply to contractual and non-contractual claims for damages by the Purchaser concerning a defect of the goods, unless the application of the regular statutory limitation (Sec. 195, 199 BGB [German Civil Code]) would result in a shorter period of limitation in the individual case. Claims for damages by the Purchaser in accordance with Sec. 9 para. 2 sentence 1 and 2(a) and in accordance with the Product Liability Act shall lapse, though only after the statutory limitation periods.
11. CHOICE OF LAW AND JURISDICTION
(1) These GTCS and the contractual relationship between the Seller and the Purchaser shall be subject to the law of the Federal Republic of Germany under exclusion of international law and in particular of the UN Convention on Contracts for the International Sale of Goods.
(2) If the Purchaser is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a public law special fund, the exclusive and also the international court of jurisdiction for all disputes arising from the contractual relationship, either directly or indirectly, is the business headquarters of the Seller in Fulda. The same applies if the Purchaser is a contractor within the meaning of Sec. 14 BGB [German Civil Code]. However, the Seller is also entitled in all cases to institute proceedings at the place of performance for the delivery obligation in accordance with these GTCS or a priority individual agreement or at the general place of jurisdiction of the Purchaser. Primary statutory regulations, in particular with regard to exclusive powers, remain unaffected.