TERMS AND CONDITIONS OF BUSINESS, DELIVERY AND PAYMENT
§ 1 Scope
(1) These Terms and Conditions of Sale shall apply exclusively and only to companies, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code. 1 BGB. We shall only recognize terms and conditions of the customer that are contrary to or deviate from our terms and conditions of sale if we expressly agree to their validity in writing.
(2) These Terms and Conditions of Sale shall also apply to all future transactions with the Purchaser, insofar as these are legal transactions of a related nature.
§ 2 Offer and conclusion of contract
1. our 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, calculations, 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 is considered a binding contract offer. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within two weeks of its receipt by us.
Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.
§ 3 Surrendered documents
We reserve the property rights and copyrights to all documents provided to the customer in connection with the placing of the order, e.g. calculations, drawings, etc. The customer shall be entitled to use these documents in accordance with the contract. These documents may not be made accessible to third parties unless we give our express written consent to this effect to the customer. If we do not accept the orderer’s offer within a period of § 2, these documents shall be returned to us without delay.
§ 4 Prices and payment
Unless otherwise agreed in writing, our prices are ex works excluding packaging and plus value added tax at the applicable rate. Costs of packaging and shipping will be invoiced separately.
2. payment of the remuneration shall be made exclusively to the account specified in the invoice. The deduction of a discount is only permissible with a special written agreement.
Unless otherwise agreed, the purchase price shall be paid within ten days after delivery. Interest on arrears shall be charged at a rate of 9% above the respective prime rate p. a. We reserve the right to claim further damages such as storage costs.
4. unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries, costs for energy, etc., which occur three months after conclusion of the contract or later.
§ 5 Set-off and right of retention
The customer shall only have the right to offset if his counterclaims have been legally established or are undisputed. The Purchaser shall only be entitled to exercise a right of retention to the extent that its counterclaim is based on the same legal relationship.
§ 6 Delivery time
1. the start of the delivery period stated by us presupposes the timely and proper fulfillment of the purchaser’s obligations. The defense of non-performance of the contract remains reserved.
If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims. If the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased goods shall pass to the Purchaser at the point in time at which the Purchaser is in default of acceptance or debtor’s delay.
In the event of a delay in delivery not caused by us intentionally or through gross negligence, we shall be liable for each full week of delay within the scope of a lump-sum compensation for delay in the amount of 3 % of the delivery value. 3 % of the delivery value, but not more than 15 % of the delivery value.
This shall not apply, however, if we can prove that the Purchaser has suffered no damage at all or only minor damage.
§ 7 Transfer of risk in case of shipment
If the goods are shipped at the request of the Purchaser, the risk of accidental loss or accidental deterioration of the goods shall pass to the Purchaser upon dispatch to the Purchaser, but no later than upon leaving the works. This applies regardless of whether the goods are shipped from the place of performance or who bears the freight costs.
§ 8 Retention of title
1. we reserve the right of ownership of the delivered item until full payment of all claims arising from the delivery contract. This shall also apply to all future deliveries, even if we do not always expressly refer to it. We shall be entitled to take back the object of sale if the customer acts in breach of contract.
2. as long as ownership has not yet passed to him, the purchaser is obliged to treat the object of sale with care. In particular, he is obliged to insure them at his own expense against theft, fire and water damage sufficiently for their replacement value. If maintenance and inspection work has to be carried out, the Purchaser shall carry this out in good time at its own expense. As long as ownership has not yet been transferred, the purchaser must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of a lawsuit in accordance with § 771 ZPO (German Code of Civil Procedure), the customer shall be liable for the loss/damage incurred.
3. the purchaser is entitled to resell the goods subject to retention of title in the normal course of business. The purchaser hereby assigns to us the claims of the customer arising from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply regardless of whether the purchased item has been resold without or after resale. The customer remains authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we shall not collect the claim as long as the customer meets his payment obligations from the agreed proceeds, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or there is no cessation of payments.
4. the processing or transformation of the object of sale by the customer shall always be carried out in our name and on our behalf, but not at our expense. In this case, the expectant right of the purchaser to the purchased item shall continue in the transformed item. If the object of sale is processed or combined with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of processing. The same applies in the event of mixing. If the mixing takes place in such a way that the item of the customer is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis and shall keep the sole ownership or co-ownership thus created for us.
5. we undertake to release the securities to which we are entitled at the request of the purchaser insofar as their value exceeds the claims to be secured by more than 20%.
§ 9 Warranty, notice of defects and recourse/manufacturer recourse
(1) Warranty rights of the Purchaser require that the Purchaser has duly complied with its obligations to inspect the goods and to give notice of defects pursuant to Section 377 of the German Commercial Code (HGB).
Claims for defects shall become statute-barred twelve months after delivery of the goods supplied by us to our customer. In the case of a sale of used goods, the warranty is excluded.
(3) If, despite all due care, the delivered goods show a defect which was already present at the time of the transfer of risk, we shall, at our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. Subsequent performance shall take place at our place of business or at the place of business of the customer, at our discretion. This shall apply in particular in the event of resale by the Purchaser. Subsequent performance shall always be granted within a reasonable period of time. Claims under a right of recourse shall remain unaffected by the above provision.
If the supplementary performance fails, the customer may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration.
5. claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear and in the case of damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating resources or due to particular external influences which are not assumed under the contract. If the Purchaser or third parties carry out improper maintenance work or modifications, there shall also be no claims for defects for these and the resulting consequences.
(6) The Purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance, including costs of travel, transport, labor, or material, to the extent that expenses are increased because the goods delivered by us were subsequently brought to another location than the Purchaser’s branch office, unless doing so complies with the intended use of the goods and we were already informed of the place of delivery at the time of the order.
7. the purchaser’s right of recourse against us shall only exist insofar as the purchaser has not entered into any agreements with its customer which go beyond the legally mandatory claims for defects. Furthermore, the scope of the Purchaser’s right of recourse against the Supplier shall be governed by para. 6 accordingly.
8. in the event of fraudulent concealment of a defect or in the event of the assumption of a guarantee for the quality of the goods at the time of the transfer of risk within the meaning of § 444 BGB (German Civil Code), the rights of the purchaser shall be governed exclusively by the statutory provisions.
(9) Should it become apparent during the rectification of defects that there was no defect covered by warranty, the customer shall be obliged to reimburse us for the costs and expenses incurred for the purpose of the alleged rectification.
§ 10 Miscellaneous
(1) This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
2. place of performance and exclusive place of jurisdiction for all disputes arising from this contract is our registered office, unless otherwise stated in the order confirmation. However, we are authorized to assert rights at the general place of jurisdiction of the customer.
All agreements made for the purpose of the execution of the contract shall be recorded in writing.
Should individual provisions be or become invalid or should the contract contain a loophole, the remaining provisions shall remain unaffected. The contracting parties undertake to conclude a supplementary agreement that comes as close as possible to the economic purpose of what was intended.
Status: October 1, 2017