§1 Scope of application, form
(1) These General Terms of Sale (GTS) apply for all our business relationships with our customers (“Purchasers”). The General Terms of Sale only apply if the purchaser is a business person (Section 14 BGB (German Civil Code)), a legal entity pursuant to public law or a fund under public law.
(2) The General Terms of Sale particularly apply for agreements regarding the sale and/or delivery of movable objects (“Goods”). Unless otherwise agreed, the GTS in the version applicable at the time of the purchaser’s valid order and/or, in any case, the version last submitted to him in text form shall apply as a framework agreement for similar future agreements without requiring a reference to them in each individual case.
(3) Our GTS apply exclusively. Deviating, opposing or supplemental general conditions of the purchaser become a component of the agreement only and to the extent as we have explicitly agreed to their validity. This requirement for consent applies in any case, for example also if we have executed the delivery to the purchaser without reservation being aware of the purchaser’s general terms and conditions.
(4) Individual agreements with the purchaser concluded in isolated cases (including subsidiary agreements, supplements or changes) outrank these GTS in any event. Subject to evidence to the contrary, a written agreement and/or our written confirmation are decisive for the content of such agreements.
(5) Legally relevant declarations and notifications of the Purchaser with respect to the Agreement (e.g. deadlines, notice of defect, withdrawal or reduction) are to be submitted in writing or in text form (e.g. letter, email, fax). Legal form regulations and other verifications, particulaarly in case of doubts regarding the legitimation of the declarer remain unaffected.
(6) References to the application of legal regulations only have a clarifying significance. Therefore, the legal regulations also apply without such clarification, unless they are directly altered in these General Terms of Sale or have been explicitly excluded.
§2 Conclusion of Agreement
(1) Our offers are subject to change and non-binding. This also applies if we have provided the Purchaser with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documentation – also in electronic form – to which we retain proprietary rights and copyrights.
(2) The ordering of the Goods by the Purchaser constitutes a binding offer of contract. Unless specified differently in the order we are entitled to accept this offer of contract within 1 week from receipt by us.
(3) The acceptance may be declared in writing (e.g. by order confirmation) or through delivery of the goods to the purchaser.
§3 Terms of delivery and default of delivery
(1) The delivery period shall be agreed upon individually and/or specified by us at the acceptance of the order.
(2) If we are not able to comply with binding delivery deadlines for reasons which are not our responsibility (unavailability of service), we shall notify the Purchaser without undue delay and simultaneously inform him of the anticipated new delivery date. If the service is not available also within the new delivery period, we are entitled to partially or completely withdraw from the agreement; we shall refund any considerations provided by the Purchaser without undue delay. Cases of unavailability of the service in this context particularly include the late self-supply through our supplier, if we have concluded a congruent hedging transaction, if neither we nor our supplier are responsible or if we are not responsible for the procurement in individual cases.
(3) The commencement of our delay in delivery is determined by the statutory regulations. However, a warning from the Purchaser is required in any event.
(4) The Purchaser’s rights according to § 8 of these GTS and our legal rights, particularly in case of the exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of the performance and/or subsequent fulfilment) remain unaffected.
§4 Delivery, transfer of risk, acceptance, default of acceptance
(1) Delivery occurs according to the individual agreement of the applicable Incoterms. Unless otherwise agreed, we are entitled to determine the type of dispatch (particularly transport companies, transport route, packaging).
(2) The risk of accidental destruction and accidental deterioration of the Goods is transferred to the Purchaser upon handover to the Purchaser at the latest. The handover and/or acceptance also apply if the Purchaser is in default of acceptance.
(3) If the Purchaser is in default of acceptance, omits an act of cooperation or if our delivery is delayed for other reasons owed to the Purchaser, we are entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs).
§5 Prices and payment conditions
(1) Unless otherwise agreed in individual cases, our prices respectively current at the time of formation of an agreement apply plus legal VAT.
(2) Unless otherwise agreed, the purchase price is due and payable within 14 days from date of invoice and delivery and/or acceptance of the Goods. However, in the context of an ongoing business relationship, we are also entitled to provide full or partial delivery only subject to prepayment at any time. We shall declare a respective reservation with the order confirmation at the latest.
(3) If the Purchaser pays by way of SEPA basic direct debit transaction and/or SEPA company direct debit transaction, the notification of direct debit (so-called pro-notification) is specified in the respective invoice. We generally debit the invoice amount 8 days after the invoice date. The period for the pro-notification is reduced to 3 days. The Purchaser ensures that the account is covered at the time of the debit. Costs generated by us due to non-redemption or reverse booking of the direct debit have to be reimbursed by the Purchasers, if the non-redemption or reverse booking was not caused by us. Bills of exchange shall only be accepted on account of performance, not in lieu of performance.
(4) The Purchaser is in default upon the expiration of the above mentioned payment deadline. The purchase price shall incur interest in the amount of the respectively applicable legal default interest for the duration of the default. We reserve the right to assert further damage caused by default. Toward merchants, our claim to the commercial default interest (Section 353 HGB (German Commercial Code)) remains unaffected.
(5) The Purchaser is only entitled to offsetting or right of retention if his claim is final and absolute or uncontested. The Purchaser’s counter claims, particularly according to Section 7 (6) sentence 2 of these GTS remain unaffected in case of delivery defects.
(6) If it becomes evident after the conclusion of the agreement that our claim to the purchase price is jeopardised due to the Purchaser’s lack of performance (e.g. application to commence insolvency proceedings), we are entitled to refuse performance according to the statutory regulations and – after a possible deadline – to withdraw from the agreement (Section 321 BGB). In case of agreements pertaining to the production of unreasonable objects (e.g. one-off productions) we are entitled to declare the withdrawal immediately; the legal regulations regarding the expendability of the a deadline remain unaffected.
§6 Reservation of title
(1) We reserve ownership to the sold goods up to the complete payment of all our current and future claims from the purchase agreement and an ongoing business relationship (secured claims).
(2) The goods under reservation of title may not be mortgaged or pledged as security to third parties until complete payment of the secured claim. The purchaser is obligated to notify us in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the goods belonging to us.
(3) In case of conduct contrary to the agreement by the Purchaser, particularly in case of non-payment of the due purchase price, we are entitled to withdraw from the agreement according to the statutory regulations and/or demand the return of the goods based on reservation of title. The demand for surrender does not simultaneously comprise the declaration of withdrawal; rather, we are entitled to merely demand the surrender of the goods and reserve the right to withdraw. If the Purchaser fails to pay the due purchase price, we are only permitted to assert these rights if we unsuccessfully provided the Purchaser with a suitable deadline for payment or if such a deadline is expendable based on statutory regulations.
(4) Until revoked in accordance with (c) below, the Purchaser is authorised to resell and/or process the goods subject to reservation of title in the ordinary course of business. In this case, the following conditions apply.
(a) The reservation of title includes products created based on the processing, intermingling or combination of our Goods at their full value, whereby we are considered the manufacturer. If a third party proprietorship remains valid during the processing, intermingling or combination with third party goods, we acquire co-ownership at the ratio of the invoice values of the processed, intermingled or combined goods. For the remainder, the same conditions apply for the created product as in case of merchandise delivered under reservation.
(b) The Purchaser hereby assigns any claims generated from the reselling of the Goods or products against third parties to us in total and/or in the amount of our respective co-ownership share according to the above mentioned paragraph as surety. We accept the assignation. The Purchaser’s obligations stipulated in (2) also apply in consideration of the assigned claims.
(c) The Purchaser, next to us, remains authorised to collect the claim. We undertake not to collect the claim as long as the Purchaser complies with his payment obligations toward us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right pursuant to (3). If this is the case, we can demand that the Purchaser discloses the assigned claims and their debtors, provides all details necessary for the collection, supplies the respective documentation and informs the debtors (third parties) of the assignation. In addition, in this case we are entitled to revoke the Purchaser’s authority to further sell and process the goods subject to retention of title.
(d) If the realisable value of the sureties exceeds our claims by more than 10%, we shall release securities at the request of the purchaser at our discretion.
§7 Warranty claims of the Purchaser
(1) Unless otherwise determined below, the statutory regulations apply for the Purchaser’s rights in case of material defects and defects of title (including wrong or short delivery as well as improper installation or inadequate assembly instructions). In all cases, the special statutory provisions 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 Section 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the Purchaser or another entrepreneur, e.g. by installation in another product.
(2) The basis for our liability for defects is the agreement concluded regarding the quality of the merchandise. All product descriptions and manufacturer’s specifications, which are the subject of the individual contract or which were publicly announced by us (in particular in catalogues or on our Internet homepage) at the time of the conclusion of the Agreement shall be deemed to be an agreement on the quality of the goods.
(3) Unless the quality was agreed upon, the statutory regulations are decisive as to whether or not a defect exists (Section 434 (1) sentences 2 and 3 BGB). However, we are not liable for public statements of the manufacturer or other third parties (e.g. advertising statements) to which the Purchaser has not alerted us.
(4) We are principally not liable for defects which are known to the Purchaser at the time of conclusion of the Agreement or of which the Purchaser is not aware due to gross negligence (Section 442 BGB). Furthermore, the Purchaser’s claims for defects presuppose that he has fulfilled his statutory obligations to inspect and give notice of defects (Sections 377, 381 HGB). If a defect is revealed during the delivery, the inspection or at a later point in time, we have to be notified of this fact in writing without undue delay. Obvious defects have to be reported within 3 calendar days from delivery and defects not apparent on inspection within the same period of time from discovery. If the Purchaser fails to properly inspect the goods and/or gives notice of defects, our liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions.
(5) If the supplied Goods are defect, we are initially entitled to select whether we perform subsequent fulfilment by remedying the defect (subsequent improvement) or delivering a defect-free item (replacement delivery). Our right to refuse the subsequent fulfilment according to the legal prerequisites remains unaffected.
(6) We are entitled to make the subsequent fulfilment subject to the Purchaser paying the due purchase price. However, the Purchaser is entitled to retain an appropriate amount proportionate to the defect.
(7) The Purchaser is obligated to grant us the time and opportunity necessary to perform the owed subsequent fulfilment, particularly to provide the rejected Goods for examination purposes. In the event of a replacement delivery, the Purchaser is obligated to return the defect item according to the statutory regulations. The subsequent fulfilment comprises neither the de-installation nor the reinstallation of the defect item, unless we were originally obligated to perform the installation.
(8) In the event of an actual defect, we are responsible for or reimburse the costs required for the verification and subsequent fulfilment according to the specifications of the law, particularly transport, shipping, labour and material costs as well as possible de-installation and installation costs. Otherwise, we may demand reimbursement from the Purchaser of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognisable to the Purchaser.
(9) In urgent cases, e.g. in case of a threat to operational safety or to prevent disproportionate damages, the Purchaser is entitled to remedy the defect himself and demand compensation for the objectively required expenditures. The Purchaser is obligated to inform us immediately of, if possible prior to, such a self-remedy. The right of self-remedy is excluded if we would be entitled to refuse a respective subsequent fulfilment according to statutory regulations.
(10) If the subsequent fulfilment has failed or if an appropriate period of grace set by the Purchaser for the subsequent fulfilment has expired unsuccessfully or is expendable according to the statutory regulations, the Purchaser may withdraw from the agreement or reduce the purchase price. However, the right to withdrawal does not exist in case of an insignificant defect.
(11) Compensation claims of the Purchaser and/or reimbursement of futile expenses shall also exist in the case of defects only in accordance with Section 8 and are otherwise excluded.
§8 Other liability
(1) Unless otherwise stipulated in these GTS including the subsequent conditions, we are liable according to the respectively relevant regulations in case of violation of contractual and extra-contractual obligations.
(2) We are responsible for compensation – regardless of the legal reason – in the context of intentional or gross negligent fault-based liability. In case of negligence, we are only liable, subject to statutory liability limitations (e.g. duty of care in own matters, insignificant violation of duty)
- a) for damages resulting from the violation of life, body or health,
- b) for damages resulting from the violation of essential contractual obligations (obligations the fulfilment of which allows the proper execution of the agreement and the compliance of which the contractual partner may regularly assume and is entitled to assume); however, in this case our liability is limited to the replacement of the foreseeable and typical damage.
(3) The liability limitations resulting from (2) apply also to third parties as well as in case of breach of duty by persons (also in their favour) for whose culpability we are responsible according to statutory regulations. They do not apply if a defect was concealed maliciously or a guarantee for the quality of the goods has been assumed and for claims of the Purchaser under the Product Liability Act.
(4) The Purchaser is only entitled to withdraw from or terminate the agreement based on a violation of obligation not related to a defect if we are responsible for the violation of obligation. The Purchaser’s unrestricted right of termination (particularly according to Sections 650, 648 BGB) is excluded. For the remainder, the statutory requirements and legal consequences apply.
§9 Statute of limitation
(1) By derogation from Section 438 (1) No. 3 BGB, the general period of limitation for claims based on material defects and defect of title is one year from the date of delivery. If acceptance has been agreed upon, the statute of limitation commences with the acceptance.
(2) The above periods of limitation of the sales convention also apply for contractual and extra-contractual compensation claims of the purchaser which are based on a defect of the goods, unless the application of the regular statutory period of limitation (Sections 195, 199 BGB) would result in a shorter period of limitation in individual cases. Compensation claims of the Purchaser according to Section 8 (2) sentences 1 and 2(a) as well as the ProdhaftG (Product Liability Act) become statute barred exclusively based on the statutory limitation periods.
§10 Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany applies for these GTS and the contractual relationships between the Purchaser and us, excluding international uniform law, particularly the United Nations Convention on Contracts for the International Sale of Goods.
(2) If the Purchaser is a merchant in terms of the Commercial Code, a legal person under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all direct and indirect disputes arising from the contractual relationship is Hamburg. The same applies if the Purchaser is an entrepreneur in terms of Section 14 BGB. However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTS or a prior individual agreement or at the general place of jurisdiction of the Purchaser. Primary statutory regulations, particularly regarding exclusive jurisdictions, remain unaffected.