(1) These General Terms and Conditions (“Terms“) apply to all of our sales and services to our customers (“Buyer“). The Terms shall only apply if the Buyer is a business within the meaning of Section 14 of the German Civil Code (“BGB”), a legal entity under public law (juristische Person des öffentlichen Rechts) or a special fund under public law (öffentlich-rechtliches Sondervermögen).
(2) The Terms apply in particular to contracts for the sale of movable goods (“Goods“). The Terms shall also apply in the version valid at the time the Buyer issues its order as a framework agreement for future contracts for the sale and/or delivery of movable goods with the same Buyer, without us having to refer to them again in each individual case.
(3) These Terms shall apply exclusively. General terms and conditions of the Buyer shall not become part of the contract unless we have expressly agreed to their applicability, irrespective of whether they contain deviating, conflicting or supplementary provisions, even if the Buyer refers to them in its correspondence and we do not expressly object to their applicability in each individual case.
(4) Individual agreements made with the Buyer in individual cases (including, but not limited to, supplements and amendments) shall in any case take precedence over these Terms.
(5) Legally relevant declarations and notifications by the Buyer in relation to the contract (e.g. setting of deadlines, notification of defects, declaration of rescission or reduction of price) must be made in writing (e.g. by letter or e-mail) in order to be effective.
(6) References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded by these Terms.
(1) Unless otherwise stipulated in the offer, our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, costings, references to DIN standards), other product descriptions or documents – including in electronic form – to which we reserve ownership rights and copyrights.
(2) The purchase order for the Goods issued by the Buyer shall constitute a binding offer. Unless otherwise stated in the purchase order, we shall be entitled to accept this offer within seven (7) calendar days from its receipt by us.
(3) Acceptance can be declared either in writing or in text form (e.g. by order confirmation) or by delivery of the Goods to the Buyer.
(1) The delivery period shall be agreed individually or specified by us upon acceptance of the purchase order. If this is not the case, the delivery period shall be twelve (12) weeks from conclusion of the contract.
(2) If we are unable to meet binding delivery periods, we shall inform the Buyer of this without undue delay and at the same time inform the Buyer of the expected new delivery period. If our delivery is delayed because we were not supplied on time by a supplier, although we had concluded a back-to-back transaction (kongruentes Deckungsgeschäft) with the supplier prior to the conclusion of the contract with the Buyer, and if the Goods cannot be delivered within the new delivery period either, we shall be entitled to rescind the contract with the Buyer in whole or in part. The notification of a new delivery period is not required if sufficient self-supply is not to be expected in the foreseeable future; in this case we are entitled to rescind the contract with the Buyer forthwith. In the event of rescission, we shall immediately refund any consideration already paid by the Buyer. Our statutory rights of rescission and/or termination as well as the statutory provisions on performance in the event of an exclusion of the obligation to perform (Ausschluss der Leistungspflicht) (e.g., but not limited to, impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a notice by the Buyer is required.
(1) Unless otherwise agreed, delivery shall be made EXW (Incoterms 2020) from our warehouse or the location otherwise specified by us, which shall also be the place of fulfilment (Erfüllungsort). At the Buyer’s request, the Goods shall be dispatched to another destination at the Buyer’s expense and risk (Versendungskauf). In this case, unless otherwise agreed, we shall be entitled to determine the means of dispatch (in particular, but not limited to, carrier, route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the Goods shall pass to the Buyer in accordance with the Incoterm agreed with the Buyer. If a sale involving the dispatch of Goods is agreed without reference to an Incoterm, the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay shall pass to the Buyer upon handover of the Goods to the freight forwarder, carrier or other person or organisation designated to carry out the shipment. The risk of accidental loss and accidental deterioration of the Goods shall also pass to the Buyer if the Buyer is in default of acceptance.
(3) If the Buyer is in default of acceptance or culpably violates other obligations to co-operate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including, but not limited to, any additional expenses (e.g. provision and storage costs). We reserve the right to assert further claims.
(4) We are entitled to make partial deliveries or render partial services insofar as these are deemed to be reasonable for the Buyer.
(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply ex warehouse and plus statutory VAT.
(2) In the case of sale by dispatch (Section 4 (1)), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. If we do not invoice the transport costs actually incurred in the individual case, a lump sum for transport costs (excluding transport insurance) in the amount of EUR 30.00 shall be deemed agreed. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
(3) The Buyer shall be in default upon expiry of the agreed payment period. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to claim further damages caused by default. Our right to claim commercial interest rates within the meaning of Section 353 of the German Commercial Code (“HGB”) against businesses shall remain unaffected.
(4) The Buyer shall only be entitled to set-off (aufrechnen) if his counterclaim is undisputed or has been recognised by a binding (rechtskräftig) judgement. The Buyer shall only be authorised to assert a right of retention to the extent that his counterclaim is based on the same contract and is undisputed, ready for decision by court (entscheidungsreif) or recognized by a binding judgement. Section 7(6) sentence 2 of these Terms shall remain unaffected.
(5) If it becomes apparent after conclusion of the contract that our claim to the purchase price is jeopardised by the Buyer’s inability to pay (e.g. by an application for the commencement of insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after having set a deadline – to rescind the contract (Section 321 BGB). In the case of agreements for the manufacture of customised goods (unvertretbare Sachen), we may declare rescission forthwith; the statutory provisions on the waiver of setting a deadline remain unaffected.
(1) We reserve title to the Goods sold until full payment of all our present and future claims arising from the sales contract and the ongoing business relationship (“Secured Claims“).
(2) 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 must inform us immediately in writing if and to the extent that third parties have access to the Goods belonging to us.
(3) In the event of breach of contract by the Buyer, in particular non-payment of the due purchase price, we shall be entitled to rescind the contract in accordance with the statutory provisions and to demand the return of the Goods on the basis of the retention of title.
(4) The Buyer is authorised to resell and/or process 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 retention of title shall extend to the full value of the goods resulting from the processing, mixing or combining of our Goods, 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 goods as to the Goods delivered under retention of title.
(b) The Buyer hereby assigns to us as security any claims against third parties arising from the resale of the Goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the Buyer mentioned in paragraph 2 shall also apply in consideration of the assigned claims.
(c) In addition to us, the Buyer shall remain authorised to collect the receivables. We undertake not to collect the claim as long as the Buyer fulfils his payment obligations to us, is not in default of payment, no application for the commencement of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we can demand that the Buyer 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.
(d) If the realisable value of the securities exceeds our receivables by more than 10%, we shall release securities of our choice at the Buyer’s request.
(5) Insofar as Goods are delivered to countries with legal systems in which the provisions of this Section 6 are not effective and/or not enforceable, the Buyer shall immediately take all measures necessary to obtain comparable security rights for us within this legal system. The Buyer shall co-operate in all measures (such as registration or public notice) which are necessary and/or advantageous for the effectiveness and enforceability of such security interests.
(1) The statutory provisions shall apply to the Buyer’s rights in the event of defects and defects of title (including incorrect and shortfall of delivery as well as improper assembly or defective assembly instructions), unless otherwise specified below.
(2) The basis of our liability for defects is primarily the agreement reached on the quality of the Goods. The agreed quality shall be measured exclusively in accordance with the specific agreements made between us and the Buyer in writing or our confirmations of the properties, features and performance characteristics. We accept no liability for public statements made by third parties which are not authorised by us. The statutory provisions on the burden of presentation and proof in the event of defects shall otherwise remain unaffected. Descriptive or explanatory information regarding the Goods or their intended use as well as public statements are not to be understood as a guarantee (Garantie) for a particular quality or durability of the goods. A written agreement or written confirmation by us shall be decisive for the content of such quality (Beschaffenheitsgarantie) or durability (Haltbarkeitsgarantie) guarantees.
(3) The delivered Goods must be carefully inspected without undue delay after delivery to the Buyer or to the third party designated by the Buyer. With regard to obvious defects or other defects that would have been recognisable during a prompt, careful inspection, the Goods delivered shall be deemed approved by the Buyer unless we receive a written notice of defects within seven (7) working days from delivery. With regard to other defects, the delivered Goods shall be deemed approved by the Buyer if we do not receive the notice of defects within seven (7) working days from the time at which the defect became apparent.
(4) If the delivered item is defective, we may initially choose whether to provide subsequent fulfilment by either remedying the defect (Nachbesserung) or by delivering a defect-free item (Ersatzlieferung). Our right to refuse one or both types of subsequent performance under the statutory conditions remains unaffected.
(5) We are entitled to make subsequent performance dependent on the Buyer paying the due purchase price. However, the Buyer shall be entitled to withhold a reasonable part of the purchase price in proportion to the defect.
(6) The Buyer shall give us the time and opportunity required for our subsequent performance, in particular to hand over the rejected Goods for inspection purposes. Subsequent performance shall neither include the removal of the defective Goods nor the re-installation if we were not originally obliged to install them. We shall bear the expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs. In case of delivery of a replacement, the Buyer must return the defective item to us in accordance with the statutory provisions. If a notice of defect by the Buyer proves to be unjustified and the Buyer has recognised or negligently failed to recognise this, the Buyer shall be obliged to reimburse us for the expenses incurred as a result.
(7) If the subsequent performance has failed or a reasonable deadline set by the Buyer for the subsequent fulfilment has expired without success or is dispensable according to the statutory provisions, the Buyer may rescind the sales contract or reduce the purchase price. However, there is no right of rescission in case of an non-material defect.
(8) Claims of the Buyer for damages or reimbursement of futile expenses (vergebliche Aufwendungen) shall only exist in accordance with Section 8, otherwise they are excluded.
(9) The Buyer’s claim for reimbursement of expenses pursuant to Section 445a para. 1 BGB is excluded. Sentence 1 shall not apply (i) if the last buyer of the Goods in the supply chain is a consumer or if (ii) the seller has fraudulently concealed the defect or (iii) has assumed a guarantee (Garantie) for the quality of the Goods.
(1) Unless otherwise stated in these Terms, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) We shall be liable for damages – irrespective of the legal grounds – in the event of intent (Vorsatz) and gross negligence (grobe Fahrlässigkeit). Subject to paragraph 3, our liability is otherwise limited as follows:
(a) In the event of a slightly negligent (leicht fahrlässig) breach of a material contractual obligation (an obligation whose fulfilment is essential for the proper execution of the agreement and on whose compliance the other contracting party regularly relies and may rely), we shall only be liable for the damage which is foreseeable upon conclusion of the contract and which typically occurs;
(b) In the event of a slightly negligent breach of a non-essential contractual obligation, our liability is excluded.
(3) The limitations of liability resulting from paragraph 2 shall not apply to bodily injury and insofar as we have fraudulently concealed a defect or have assumed a guarantee (Garantie) for the quality of the Goods. The same shall apply to claims of the Buyer under the German Product Liability Act (ProdHaftG) or other mandatory statutory liability provisions.
(4) The Buyer may only rescind the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. Otherwise, the statutory requirements and legal consequences shall apply.
(1) The mutual claims of the parties shall become time-barred in accordance with the statutory provisions, unless otherwise stipulated below.
(2) Notwithstanding Section 438 para. 1 no. 3 BGB, the limitation period for claims of the Buyer arising from Section 437 no. 1 and no. 2 BGB is one year from delivery.
(1) The Buyer is not authorised to assign claims from agreements with us to third parties. Section 354a HGB remains unaffected.
(2) These Terms and all legal relationships between us and the Buyer shall be governed by the laws of the Federal Republic of Germany, except for the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(3) These Terms shall be interpreted exclusively based on German law and any terms used herein shall solely have the meaning ascribed to them by German law; any interpretation of such terms based on any other law shall not be permitted.
(4) If the Buyer is a merchant within the meaning of the HGB, a legal entity under public law (juristische Person des öffentlichen Rechts) or a special fund under public law (öffentlich-rechtliches Sondervermögen), the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Oberhaching, Germany. However, we are also entitled to sue the Buyer at any other legal venue.
November 2024
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