General terms and conditions
(1) Our sales conditions shall exclusively apply; contrary conditions or conditions of the customer deviating from our sales conditions are not accepted, unless we agreed to them explicitly in written form. Our sales conditions still apply in case we implicitly deliver goods to the customer with full knowledge of contrary conditions or conditions of the customer deviating from our sales conditions.
(2) All agreements reached between us and the customer for the purpose of fulfilment of the contract are determined in this contract in written form.
(3) Our sales conditions are only applicable to companies within the meaning of section 310 (1) BGB (German Civil Code).
(4) Our sales conditions also apply to all future business activities with the customer.
II. Tender/tender documents
(1) Our tender is non-binding provided nothing different results from the tender.
(2) We reserve property rights and copyrights for all graphics, drawings, calculations and other documents.
This applies also to documents in written form which are designated “confidential”. Before these documents are handed over to a third party, our explicit confirmation in written form shall be inquired by the customer.
III. Prices, terms of payment
(1) Provided nothing else results from the order confirmation, our prices apply “ex works”, including packaging, without pallets.
We reserve the right to change our prices in case of contracts with an agreed delivery period of more than four months, in case there is a cost increase after conclusion of the contract, in particular due to labour agreements or changes to material prices. We are obliged to proceed in the same way in case of cost reductions. Both cost reductions, as well as cost increases are, as soon and as far as they have come into effect, proven to the customer upon request. In case the increase exceeds 5 % of the agreed price, the customer has the right to cancel the contract (right of cancellation or right of withdrawal).
(2) Statutory value added tax is not included in our prices, it is separately indicated in the invoice at the statutory rate on the day of invoicing.
(3) Deduction of discount requires a specific agreement in written form.
(4) Provided nothing else results from the order confirmation, the net purchasing price (without discount) is due for payment within 30 days from date of invoice. The statutory terms for consequences of delayed payment apply.
5) The customer is only entitled to rights to offset if his counterclaims were declared legally binding and undisputed or if they are recognised by us. He is furthermore entitled to claim a right of retention to the extent that his counterclaim is based upon the same contractual relationship.
(6) Credit notes via bills of exchange and cheques are subject to the value date on which we receive the countervalue. Charges and costs are at the expense of the customer.
IV. Delivery periods
(1) The beginning of the delivery period stated by us requires the clarification of all technical questions.
(2) The compliance with our delivery obligations furthermore depends on the punctual and correct fulfilment of obligations of the customer. Right to put in a plea regarding a non-fulfilled contract is reserved.
(3) In case the customer is in default of acceptance or if he culpably violates any duties to cooperate, we are entitled to claim damages to compensate the disadvantages that may have resulted, including possible additional expenditures. Further claims remain reserved.
(4) Provided the prerequisites of paragraph 3 are given, the risk of accidental loss or accidental deterioration of the purchased object shall be passed to the customer at the time the latter is in default of acceptance or debtor delay.
(5) We are liable according to the statutory provisions, insofar as the underlying purchase contract is a fixed deal within the meaning of section 286, paragraph 2, no. 4 BGB or section 376 HGB. We are also liable according to the statutory provisions, insofar as a consequence of delayed delivery caused by us, for which the customer is entitled to assert that his interest in the continuation of contract fulfilment has ceased.
(6) We are furthermore liable in accordance with statutory provisions, provided the delayed delivery is caused by our deliberate or grossly negligent violation of the contract; the fault of our representative or vicarious agent will be attributed to us. Provided that the delayed delivery is not resulting from a deliberate violation of the contract on our part, our liability for damages is limited to the foreseeable, typically accruing damage.
(7) We are also liable according to statutory provisions, insofar as the delayed delivery on our part is caused due to a culpable violation of a crucial contractual obligation (obligation that, if violated, puts the contract fulfilment at risk) or a violation of cardinal duties (duties which make the proper realisation of the contract possible in the first place and on the adherence of which the customer relies regularly); in this case, however, liability for damages is limited to the foreseeable, typically accruing damage.
V. Transfer of risk
(1) Provided nothing else results from the order confirmation, delivery ex works applies.
(2) There are specific agreements regarding the return of packaging.
(3) Upon customer request, we will include transportation insurance coverage for the delivery; the costs in this respect are defrayed by the customer.
VI. Liability for defects
1) Claims by the customer resulting from defects are subject to the premise that the customer has properly performed his duties to inspect and complain according to section 377 HGB (German Commercial Code).
(2) Insofar as there is a defect of the purchased object, we are entitled to supplementary performance, meaning a removal of the defect, or to deliver new goods without defects. In case of a removal of the defect, we are obliged to bear all expenditures required for the purpose of the remedy, in particular transportation, labour and material costs, provided that those costs are not increased because the purchased object is to be brought to a different location than the location of fulfilment.
(3) If supplementary performance fails, the customer is, at his own choice, entitled to withdraw or request reduction.
(4) We are liable according to the statutory provisions, insofar as a the customer claims for damages resulting from wilful intent or gross negligence, including wilful intent or gross negligence of our representatives or vicarious agents. Insofar as we are not accused of any wilful violation of the contract, the liability for damages is limited to the foreseeable, typically accruing damage.
(5) We are liable according to statutory provisions, insofar as we culpably breach a crucial contractual obligation (obligation that, if violated, puts the contract fulfilment at risk) or a cardinal duty (duties which make the proper realisation of the contract possible in the first place and on the adherence of which the customer relies regularly); in this case, however, liability for damages is limited to the foreseeable, typically accruing damage.
(6) Insofar as the customer is entitled to compensation of the damage instead of the performance, our liability is still limited to compensation of the foreseeable, typically accruing damage of section 3.
(7) The liability for culpable injury of life, the body or health remains unaffected; this shall also apply to the obligatory liability according to the German Product Liability Act.
(8) Insofar as nothing else is agreed in the aforementioned terms, liability is excluded.
(9) The statute of limitations of claims for defects is 12 months beginning with the transfer of risk.
(10) The statute of limitations in case of a delivery recourse according to sections 478, 479 BGB remains unaffected; it is 5 years beginning with the delivery of the defective object of purchase.
VII. Joint liability
(1) Further liability for damages than designated in section 6 is excluded regardless of the legal nature of the asserted claim. This shall in particular apply to claims for damages from error upon conclusion of the contract, for any other violations of duties or for tort claims for damages according to section 823 BGB.
(2) The limitation according to section 1. shall still apply insofar as the customer requests the compensation for useless expenditures instead of the performance and instead of a claim for damages.
(3) Insofar as the liability for damages against us is excluded or limited, this also applies in terms of the individual liability for damages of our employees, workers, representatives and vicarious agents.
VIII. Reservation of proprietary rights
(1) We reserve the property of the object of purchase until the time of receipt of all payments from the delivery contract. In case of a violation of the contract by the customer, in particular in case of delayed payment, we are entitled to take back the object of purchase. In case we take back the object of purchase, this includes withdrawal from the contract. After the object of purchase was taken back, we are entitled to utilize the object of purchase; the resulting proceeds are offset against the customer liabilities, deducting appropriate utilization costs.
(2) The customer is obliged to handle the object of purchase with care; he is in particular obliged to have sufficient insurance coverage at the value when new at his own expense against damage caused by fire, water and theft. Insofar as service and inspection work is required, the customer must perform these measures at his own expense and in due time.
(3) In case of garnishments or any other interventions by third parties, the customer shall immediately inform us in written form so that we can institute an action as per section 771 ZPO (German Code of Civil Procedure). Insofar as the third party is not able to refund us with the costs that accrued in court and out of court as part of a suit according to section 771 ZPO, the customer shall be liable for our financial loss.
(4) The customer is authorised to resell the object of purchase in the proper course of business; however, he shall now already transfer all claims to us amounting to the final invoice total (including value added tax) of our claim, to which he is entitled from the resale towards the buyer or third parties and not depending on whether the object of purchase was resold without or after processing. The customer will still be entitled to assert this claim after the transfer. Our authorisation to assert the claim remains unaffected. However, we will not assert the claim as long as the customer fulfils his payment duties from the received proceeds and as long as the customer is not in default of payment and, in particular, as long as the customer does not apply for composition or insolvency proceedings, or a suspension of payments is in force. However, if this is the case we are entitled to request from the customer the disclosure of the transferred claims and their debtors, to provide us with all information that is required for the collection, to hand over the corresponding documents and to inform the debtor (third party) about the transfer.
(5) Processing or alteration of the object of purchase is always carried out for us. If the object of purchase is processed with other objects which do not belong to us, we shall become joint owners of the new object at the rate of the value of the object of purchase (final invoice total including value added tax) to the other processed objects at the time of processing.
For the object that emerges by processing, the same shall apply as for the object of purchase delivered under reserve.
(6) In case the object of purchase is inseparably mixed with other objects which do not belong to us, we shall become joint owners of the new object at the rate of the value of the object of purchase (final invoice total including value added tax) to the other mixed objects at the time at which the objects were mixed. In case objects are mixed in the fashion that the object of the customer is to be considered the main object, it shall be agreed that the customer transfers us partial ownership at a proportionate rate. The customer shall ensure the sole ownership or joint ownership that results on our behalf.
(7) The customer shall furthermore transfer claims to us that ensure our claims against him that result from the connection of the object of purchase with a property against a third party.
(8) We are obliged to disclose the collaterals to which we are entitled, upon the request of the customer, to the extent that the realisable value of our collaterals exceeds the claims to be ensured by more than 10 %; we are in charge of the selection of collaterals to be released.
IX. Place of jurisdiction, place of fulfilment
(1) Provided that the customer is a merchant, our place of business shall be the place of jurisdiction. We are, however, also entitled to institute proceedings against the customer at his residence court.
(2) The law of the Federal Republic of Germany shall apply – the UN Convention on Contracts for the International Sale of Goods is not applicable.
(3) Insofar as nothing else results from the order confirmation, then our place of business shall be the place of fulfilment.