(as at January 1st 2015)
§ 1 General, Scope
(1) These general terms and conditions of sale shall form the basis of all business relations with the customer (referred to as “buyer”). The terms and conditions of sale only apply, when the buyer is an entrepreneur (as in § 14 German Civil Code), legal entity under public law or special fund under public law.
(2) The terms and conditions of sale apply particularly to contracts concerning sale and/or delivery of movable items (referred to as “goods”), regardless whether we produce the goods ourselves or purchase them from suppliers (§§ 433, 651 German Civil
Code). The terms and conditions of sale shall also serve, in their particular version, as a general agreement for future contracts of sale and/or delivery of movable items with the same buyer, without further need to indicate this in every individual case.
(3) Our terms and conditions of sale apply exclusively. Any conflicting or deviating terms on the part of the buyer shall not be recognized as part of the contract, unless we expressly agree to them. This requirement of consent applies in any event, for example even if we, being aware of the buyer’s general terms and conditions, execute delivery to it without reservation.
(4) Single agreements that were agreed upon with the buyer individually (including subsidiary agreements, amendments or modifications), in any case, have priority over these terms and conditions of sale. With regards to the content of those agreements a written contract or a confirmation in writing is decisive.
(5) Legally relevant declarations and statements, that are to be issued on the buyer’s side towards us after the conclusion of the contract (e.g. deadlines, notice of defects, declaration of withdrawal or mitigation), need to be made in writing in order to be valid.
(6) References to the validity of statutory regulations shall only have clarifying significance. Therefore, the statutory regulations shall also apply without such a clarification insofar as they are not directly amended or are explicitly excluded in these terms and conditions of sale.
§ 2 Conclusion of contract
(1) Our offers remain without obligation and are not binding. This also applies if we leave catalogues, technical documents (e.g. drafts, blueprints, evaluations, calculations, references to DIN-standards), other product specifications or documentation – also in electronic form – to which we reserve all rights of ownership and copyright, at the buyer’s disposal.
(2) The order for the goods placed by the buyer shall be deemed a binding offer to enter into a contract. If nothing else is specified in the order, we are entitled to accept this offer within two weeks from receipt of the purchase order at our company.
(3) Acceptance shall either be declared in writing (e.g. through order confirmation) or through the supply of goods to the customer.
§ 3 Delivery deadline and Delay in delivery
(1) The delivery deadline shall be agreed individually or shall be stated by the supplier upon acceptance of the order.
(2) If binding delivery deadlines cannot be met for reasons beyond our control (non-availability of the service), we shall inform the buyer thereof without delay and set an estimated new date of delivery at the same time. If the service remains unavailable within the new date of delivery, we are entitled to withdraw from the contract in part or in whole. Any consideration that may have already been provided will be reimbursed by us without delay. Deemed as case of non-availability of the service within this meaning, is in particular the late self-delivery by our component suppliers, if we have concluded a congruent hedging transaction. Our statutory rights of withdrawal and cancellation, as well as the legal provisions concerning completion of the contract if the obligation to perform is excluded (e.g. impossibility or unreasonableness of performance and/or subsequent performance) shall be unaffected. The buyers rights of withdrawal and cancellation § 7 of these terms and conditions of sale shall remain unaffected as well.
(3) The occurrence of a delay in delivery is determined in accordance with legal provisions. In any case, however, a reminder of the buyer is necessary.
§ 4 Delivery, Passing of risk, Acceptance, Default of acceptance
(1) Delivery is ex warehouse, which is also the place of performance. At request and expense of the buyer the goods shall be shipped to a different destination (sale by dispatch). If nothing else is agreed upon, we are entitled to choose the means of delivery (especially the shipping company, dispatch route, packaging) ourselves.
(2) The risk of accidental loss and deterioration of the goods transfer to the buyer at the latest when the goods are physically delivered at the place of destination. In case of sale by dispatch, the risk of accidental loss and deterioration of the goods as well as the risk of delay already transfers when the goods are handled over to the shipping agent, the freight forwarder or any other person or institution designated to transfer the delivery. If an acceptance procedure has been agreed upon, it shall be authoritative for the passing of risk. The statutory provisions of the law on contracts for services shall apply analogously in other respects to an agreed acceptance. It shall be deemed equivalent to the handover or acceptance if the buyer is in default of acceptance.
(3) If the buyer is in default of acceptance, if he fails to provide any act of assistance or if our delivery is delayed for other reasons of the buyer’s responsibility, we are entitled to demand compensation for the damages caused, including additional expenses (e.g. storage costs). For this we shall charge a lump-sum indemnity of 0,25% of the delivery value per calendar day, beginning with the delivery deadline or – if no delivery deadline was set- with the notification that the goods are ready for shipment.
(4) In case of non-acceptance or return of the goods we charge a lump-sum indemnity of 20% of the delivery value. The proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; the lump-sum is however to be offset against further monetary claims. The buyer remains at liberty to prove that a damage or depreciation has either not taken place at all or is substantially lower than the lump sum claimed.
§ 5 Prices and Terms of payment
(1) Unless agreed upon otherwise in a single case, our current prices at the particular date of the transaction apply on the basis ex warehouse, exclusive turnover tax and packaging. Assembly, initial operation, lining-up or similar services shall be executed on request and the costs shall be invoiced separately.
(2) The minimum order value is EUR 100,00. Orders below this value shall be charged with a minimum quantity surcharge of EUR 20,00.
(3) In the case of sale by dispatch (§ 4 Par. 1) the buyer bears the costs of transport ex warehouse and the costs of transportation insurance, if the buyer possibly requests this kind of insurance coverage. Any customs duties, fees, taxes and other public charges shall be paid by the buyer. Transport- and any other packaging, according to the Packaging Ordinance, shall not be accepted back, it becomes the property of the buyer; with the exception of pallets.
(4) The purchase price is due and payable within 14 days from invoicing and delivery or acceptance of the goods. In case of contracts with a delivery value of more than EUR 5.000,00 we have are entitled to charge a deposit of 20% of the purchase price. The deposit is due and payable within 14 days from invoicing. On payment within 14 days from invoicing we grant an early payment discount of 2% on the invoice amount.
(5) If the above payment deadline is not met, the customer will be in default. During the payment default, interest will be charged on the purchase price in conformity with the legal default interest rate. We reserve the right to enforce higher claims for compensation. Our entitlement to commercial maturity interest against merchants (§ 353 HGB /German Civil Code) remains unaffected.
(6) The Buyer is only entitled to rights to offset or retention to the extent that its entitlement has been determined final and binding or is undisputed. If a delivery is faulty § 7 Par. 6 remains unaffected.
(7) If there are indications, after conclusion of the contract, that our entitlement to the purchase price is imperilled through the buyer’s inability to pay (e.g. default payment in business relations with other suppliers or if the buyer has filed for insolvency proceedings) then we are entitled to refuse service and – if applicable after setting a deadline – to withdraw from the contract according to the statutory regulations (§ 321 German Civil Code). In the case of a contract for manufacturing of specific items (custom-made items) we can withdraw immediately; this shall not affect the legal provisions concerning the dispensability of setting a deadline.
§ 6 Reservation of proprietary rights
(1) We reserve the right to the property of the sold goods until the full payment of all of our current and future claims from the purchase contract and a current business relationship (secured claims).
(2) The goods to which we reserve our proprietary rights may neither be pledged to third parties, nor assigned as collateral before the full payment of the secured claims. The customer must notify us, without undue delay and in writing, if and to the extent that third parties attempt to dispose over the goods that are our property.
(3) In the event of breach of contract by Purchaser, in particular in the event of delay in payment, we shall be entitled to withdraw from the contract according to the statutory regulations or/and reclaim the goods due to the reservation of proprietary rights. Any demand for the return of goods shall not be deemed to include a simultaneous declaration of withdrawal; on the contrary, we shall be entitled to demand solely the return of the goods and reserve the right to withdraw from the contract. If the buyer does not pay the purchase price due, we may assert these rights only if we have first set the Customer an appropriate deadline for payment without result or if setting a deadline is not required according to the provisions of law.
(4) The buyer is entitled to sell and/or process the goods under retention of proprietary rights in the ordinary course of business. In this case the following provisions shall apply additionally.
(a) The reservation of proprietary rights covers the products which are produced by processing, mixing or combination of our goods at their full value, whereby we are deemed the manufacturer. If third party proprietary rights are created as a result of the processing, mixing or combination with goods of third parties, we shall be granted co-ownership in the newly created products in the ratio of the invoiced value of the processed goods. Furthermore the same applies for the resulting product as for the supplied goods which are subject to retention of title.
(b) The buyer hereby now already assigns the claims against third parties, which are established from the resale of the goods or product in total or in the amount of our possible co-ownership share, to us as collateral according to the before-mentioned paragraph. We herewith accept such assignment. The obligations of the buyer stated in paragraph 2 shall also apply in view of the assigned claims.
(c) Beside ourselves the buyer remains entitled to collect the claims. However, we commit to not collecting the claims as long as the buyer meets his payment obligations arising from the earnings received, does not default on payment or no petition for the initiation of insolvency proceedings has been issued or no cessation of payment is at hand. Should this be the case, however, we may demand that the buyer discloses to us the assigned claims and their debtors, that he provides all necessary information and surrenders all appropriate documents and that he notifies the debtors (third parties) of the assignment.
(d) Should the viable value of the securities granted exceed our claims by more than 20%, we shall, at request of the buyer, return or release securities at our discretion.
§ 7 Buyers claim for defects
(1) The statutory regulations shall apply to the rights of the buyer in case of defects of quality and title (including false and short delivery as well as improper assembly or faulty assembly instructions) insofar as not otherwise determined below. The special legal provisions in the case of ultimate delivery of the goods to a consumer (supplier regress according to §§ 478, 479 German Civil Code) shall be unaffected in all cases.
(2) The primary basis of our liability for defects shall be the agreement made concerning the quality of the goods. All product descriptions that are subject of the individual contract are considered as an agreement about the quality of the goods, regardless if the product descriptions originate from the buyer, the manufacturer or from us.
(3) As far as quality has not been agreed upon, it has to be evaluated according to the legal provision if a defect is at hand or not (§ 434 I German Civil Code). We shall assume no liability for public statements of the manufacturer or third parties (e.g. advertising).
(4) The buyer’s claims for defects presume that he has satisfied his statutory obligations for inspection and reporting of complaints (§§ 377, 381 German Commercial Code (HGB)). Should any defect be found upon inspection or later, we must be notified of this immediately and in writing. Notification is deemed as immediately, if it is made within two weeks whereby the timely submission of the report is sufficient in order to meet the deadline. Regardless of this obligation for inspection and reporting of complaints, the buyer must report obvious defects (including false and short delivery) within two weeks from delivery in writing whereby the timely submission of the report is also sufficient here in order to meet the deadline. If the buyer fails to carry out the proper inspection and/or report of defects, our liability for the defect that remains unreported, is excluded.
(5) If the delivered item is faulty, we can initially choose whether we shall provide supplementary performance by resolving the defect (subsequent improvement) or by delivery of a faultless item (substitute delivery). Our right to refuse the chosen type of subsequent performance under the statutory requirements remains unaffected.
(6) We are entitled to make the owed supplementary performance dependent on the fact that the buyer pays the due purchase price. The buyer however, is entitled to retain a reasonable part of the purchase price in ratio to the defect.
(7) The buyer shall allow us the time and opportunity necessary for the due supplementary performance and shall in particular hand over the goods subject to inspection. In the event of the supplementary delivery, the buyer must return the faulty item to us according to the statutory regulations.
(8) We shall pay the expenses for inspection and supplementary performance, especially the transport, travel, work and material costs, when a defect actually exists. If, however, the buyer’s demand to resolve a defect turns out to be unjustified, we are entitled to claim the incurred expenses from the buyer.
(9) In urgent cases, e.g. if workplace security is in danger or to prevent disproportionally severe damage, the buyer has the right to remedy the defect on his own and claim reimbursement of the objectively necessary costs from us. We shall be notified without delay, if possible beforehand, of such self-remedying of defects. The right to self-remedying does not apply if we would have been entitled to refuse supplementary performance according to legal stipulations.
(10) If the supplementary performance has failed or a reasonable deadline, which is to be set by the buyer for the supplementary performance, has expired fruitlessly or it is dispensable according to the statutory regulations, the buyer can withdraw from the purchase contract or reduce the purchase price. This right of withdrawal does not exist in the event of an insignificant defect.
(11) Claims of the buyer for damages or reimbursement of fruitless expenses shall only exist according to § 8 and are excluded as for the rest. As far as not otherwise derived from these general terms and conditions of sale, including the following provisions, we shall be liable according to the applicable statutory regulations in case of a breach of contractual and noncontractual duties. Expenses shall only exist according to § 8 and are incidentally excluded.
§ 8 Other liability
(2) We shall be liable for damages – no matter for what legal grounds – in case of willful intent and gross negligence. In cases of minor negligence we are only liable:
a) for damages arising from injury to life, body and health.
b) for damages from the breach of an essential contractual duty (obligation, the completion of which enables the proper execution of the contract in the first place and on which the contractual partner relies and may as a rule rely on its compliance); in this case our liability is however limited to the reimbursement of the foreseeable, typically occurring damages.
(3) The liability restrictions that follow from paragraph 2 shall not apply insofar as we have maliciously failed to disclose a defect or have assumed a warranty for the condition of the goods.
(4) Due to a neglect of duty which is not based on a defect of the goods, the buyer may only terminate or withdraw from the contract, if the circumstance justifying the withdrawal is based on a fault or negligence for which we are responsible. A free right of termination of the buyer (in particular according to §§ 651, 649 German Civil Code) is excluded. Otherwise the legal requirements and legal consequences are applicable.
§ 9 Limitation of claims
(1) Divergent from § 438 Par. 1 No. 3 German Civil Code the general statute-of-limitations for claims from defects of quality and title is one year from delivery. In so far as acceptance testing is agreed upon, the limitation period shall begin upon acceptance.
(2) In case the delivered good is an item typically used in the construction of a building and which defectiveness subsequently caused the faultiness of a building itself (building material), the limitation period amounts to five years after delivery (§ 438 Par.1 Nr. 2 German Civil Code). Statutory special regulations on in rem claims to return of third parties (§ 438 Par. 1 No. 1 German Civil Code), willful deceit of the vendor (§ 438 Par. 3 German Civil Code) and for claims of regress against the supplier in final supply to a consumer (§ 479 German Civil Code) shall also be unaffected.
(3) The before mentioned limitation periods of sales law also apply to contractual and non-contractual damages claims by the buyer, based on a defect of the delivered item, unless application of the normal statutory limitation period (§§ 195, 199 German Civil Code) would, in the individual case, lead to a shorter limitation period. The limitation periods of the German Product Liability Law shall remain unaffected in any case. Apart from that, the statutory limitation periods according to § 8 apply exclusively for damage claims of the buyer.
§ 10 Applicable law and Jurisdiction
(1) The law of the Federal Republic of Germany, excluding all international and supranational (treaty) law systems, in particular the UN Convention on Contracts for the International Sale of Goods, shall apply to these terms and conditions of sale and all legal relations between us and the buyer. Requirements and effects of the retention of proprietary rights according to § 6, however, are subject to the law applicable at the location of the goods, if this stipulates that selection of applicable law in favor of German law is not permissible or invalid.
(2) If the buyer is an entrepreneur within the meaning of the German Civil Code, legal entity under public law or special fund under public law, the place of jurisdiction for all disputes arising directly or indirectly from this contractual relationship shall be our business headquarters in Speyer. However, we shall also be entitled to take action at the place of general jurisdiction of the buyer.