General Terms and Conditions of Trade
General – scope of application
(1) Our terms and conditions of sale (from hereon also terms and conditions) apply exclusively: we do not recognise any contrary conditions of the Customer, unless expressly approved by us in writing. Our terms and conditions shall apply even if we deliver to the Customer without reservation despite knowledge of contradictory terms and conditions or those deviating from our terms, of the Customer.
(2) All agreements that have been reached between us and the Customer in order to fulfil this contract have been listed in writing in this contract.
(3) Our terms and conditions only apply to enterprises exercising their industrial or independent professional activity at conclusion of the legal transactions and legal entities under public law as well as public law special funds. Specifically as per § 310 Abs. 1 BGB (German Civil Code).
Offer – offer documentation
(1) If the order can be qualified as an offer according to § 145 German Civil Code, we can accept it within 2 weeks.
(2) We reserve all property and copyrights to illustrations, calculations and other documentation. This also applies to written documents, marked as ´confidential`. These may not be forwarded to third parties or used for any other purposes without our written approval.
Prices – payment terms
(1) Unless otherwise previously and expressly agreed in the order confirmation, all our prices are ´ex works` exclusive of packaging; this will be charged for separately.
(2) The statutory Value Added Tax is not included in our prices; this will be charged for separately at the statutory amount applicable on the date of invoicing.
(3) Deduction of any discounts shall require specific written agreement.
(4) To the extent that the order confirmation states nothing to the contrary, the purchase price shall be due for payment (without any deduction) within 30 days from the date of invoice. Statutory regulations governing consequences of payment default apply.
(5) The Customer may only have the right to set off any payment, if their counter claims have been legally confirmed, indisputable or accepted by us. Additionally they shall be entitled to exercise a right of retention insofar as their counterclaim is based on the same contractual relationship.
(1) The start of the delivery period stated by us shall presuppose clarification of all technical questions.
(2) Our compliance with our delivery obligation presupposes that the Customer has correctly fulfilled their responsibilities and in time. We reserve the right of non- fulfilment of the contract.
(3) If the Customer delays acceptance or he culpably infringes any other duty to cooperate, we will be entitled to compensation for damages already incurred including any resulting additional expenses. We reserve the right to make further claims.
(4) Insofar as the preconditions of section (3) come into effect, the risk of accidental destruction, loss or accidental deterioration of the contractual item(s) is passed onto the Customer through their own postponement of delivery or default in payment.
(5) We shall be liable, according to statutory regulations, inasmuch as the applicable contract specifies a fixed delivery date as per § 286 para. 2 No. 4 BGB or § 376 HGB. We shall also be liable according to statutory regulations, insofar as a consequence of a delay in delivery caused by us, the Customer is entitled to enforce their claim that interest in further fulfilment of the contract no longer exists.
(6) We are also liable according to statutory regulations if delivery default is due to an intentional or grossly negligent breach of contract;in this case any fault of our representatives, vicarious agents shall be considered to be attributable to us. Insofar as the delivery delay is not the result of an intentional breach of contract for which we are responsible, our liability for compensation is limited only to foreseeable damage that may typically occur.
(7) We are also liable according to statutory regulations, insofar as the delivery delay is based on a culpable violation of an essential contractual obligation on our part; although in such a case liability for damages shall be limited only to foreseeable damages that may typically occur.
(8) Moreover, in the event of delivery delay we shall be liable for every full week of delay within the framework of a lump sum compensation of 3% of delivery value, but a maximum of no more than 15% of total delivery value.
(9) Further legal claims and rights of the Customer are reserved.
Transfer of risk, packaging, disposal
(1) Insofar as nothing contrary is agreed in the order confirmation, our prices are “ex works”, exclusive of packaging.
(2) Transport – and all other packaging, as per German Packaging Regulation may not be returned, with the exception of euro pallets. The Customer is obliged to dispose of the packaging at their own expense.
(3) If the Customer expressly requests, we will arrange transport insurance for the delivery; the additional costs shall be met by the Customer.
(4) The Customer is responsible to dispose of the goods delivered at the end of their usage, at their own cost and according to all applicable statutory regulations. The Customer shall indemnify the supplier from and against all obligations under Paragraph 10(2) Elektrogesetz “manufacturers’ obligation to accept returned devices” (German Act) as well as from any related claims from third parties.
(5) The Customer must contractually obligate commercial third parties to whom the delivered goods are transferred, to properly dispose of these goods – at their own cost and in accordance with the statutory regulations at the end of usage – and to impose the same obligation on any person to whom these goods are further transferred.
(6) Should the Customer fail to contractually obligate third parties to whom they
forward the goods the responsibility to dispose of them, the Customer is then obliged to take the goods back at their own costs and dispose of them according to statutory regulations.
(1) Any warranty claims of the Customer shall require that the latter has properly complied with their duties according to § 377 HGB to inspect and to report any complaints.
(2) Where the purchased goods are defective, the Customer has the right to demand defect rectification or a new delivery of defect free goods. In the case of rectification, we are obliged to carry all necessary costs incurred, in particular transportation, travel, labour and material costs, inasmuch as these are not increased if the goods are to be transported to a different location other than the one originally agreed to.
(3) Should remedial action fail, the Customer shall then be entitled to demand withdrawal from the contract or a reduction in price.
(4) We are liable according to statutory regulations, if the Customer successfully asserts a claim for damages that are due to criminal intent or gross negligence of our representatives or vicarious agents. If we are not held liable for intentional breach of contract, then the liability for damages is limited to the damages typically foreseeable.
(5) We are liable according to statutory regulations if we culpably breach a material contractual obligation; in this case the liability for damages is limited to the damages typically foreseeable.
(6) Liability for culpable injury to life, body or health remains unaffected; this also applies for the mandatory liability according to the Product Liability Act.
(7) Unless otherwise agreed to in writing, all other liability is expressly and specifically excluded.
(8) The statutory period of limitation is 12 months, commencing with transfer of risk.
(9) The statutory period of limitation in the event of a delivery regress according to §§ 478, 479 BGB German Civil Code remains unaffected; five years, commencing from delivery of defective goods.
(1) Any further liability for compensation other than intended in § 6 – without consideration of the legal nature of the asserted claim is excluded. This applies in particular for claims for damages arising from culpability at conclusion of contract, other breaches, because of claims in tort for indemnification of material damages according to § 823 BGB.
(2) Insofar as our liability for damages is excluded or limited, this also applies to the personal liability for damages caused by our staff, employees, co-workers, representatives vicarious agents and any subcontractors.
Retention of title
(1) The goods remain our property until all payments agreed in the delivery contract have been made. In the event of breach of contract from the Customer, especially payment default, we shall be entitled to retake/ demand return of the goods. A retake /demand return of the goods does not constitute a cancellation of contract unless we explicitly consented to this in writing. However a court seizure from us for the purchased goods shall always represent a cancellation of the contract. After recovery of goods we shall be entitled to sell them, and the proceeds minus reasonable resale costs deducted from the Customer’s obligation.
(2) The Customer is obliged to take all due care of the purchased goods; he is especially obliged to adequately insure them to new/replacement value at their own cost against fire-, water damages and theft. The Customer must carry out, in particular, all necessary servicing and maintenance work in due time at their own cost.
(3) In the case of seizure of goods or other interventions by third parties the Customer must inform us immediately in writing, in order that we can sue according to § 771 ZPO (German Code of Civil Procedure). If the third party is unable to reimburse us according to § 771 ZPO the judicial and extrajudicial costs of a lawsuit, the buyer is liable for the loss we incur.
(4) The Customer has the right to resell the purchased goods in the normal course of business; however, right now the Customer assigns to us all claims in the final invoice (incl. V.A.T. where applicable) of our demand that accrue to the Customer by resale from/to their Customer or third party, irrespective of whether the purchased goods are sold with or without processing.
Even after assignment the Customer shall be entitled to collect these claims; our right to collect such claims ourselves remains unaffected.
We agree however not to collect these claims as long as the Customer meets their payment obligations from payments received from this sale, does not fall into arrears with payment and, in particular, does not apply for insolvency proceedings nor discontinue payments.
Should this occur however, we are entitled, that the Customer informs us of the assigned claims and their debtors, provides all information and relevant documents necessary to assert our claim and that they inform the debtors (third parties) of the assignment.
(5) Processing and modification of the purchased goods by the Customer will always be done on our behalf. If the purchased goods are processed with other objects not belonging to us, we shall acquire part ownership of the new item relative to value of purchased goods (final invoice total incl. V.A.T.) compared to value of the other items used, at time of processing. The same applies for the item made from processing as for the goods delivered under retention of title.
(6) If the purchased goods are combined inseparably with other objects not belonging to us, we shall acquire part ownership of the new item relative to value of purchased goods (final invoice total incl. V.A.T.) compared to value of the other items used, at time of combination.
If combination is carried out in such a way, that the Customers’ item can be considered the main item, it is agreed that the Customer proportionately transfers part ownership to us. The Customer shall preserve sole or part ownership for us of the hereby created item.
(7) The Customer will also assign to us those claims, in order to secure our claims against them, arising against a third party if goods purchased are integrated into a piece of property.
(8) Upon the Customer’s request, we agree insofar to release the securities to which we are entitled, to the extent that the value of our securities exceeds the claims to be secured by more than 10%; we reserve the right to select which securities to release.
Place of jurisdiction and performance
(1) In the event that the Customer is a business, legal entity, our registered office shall be the place of jurisdiction; we are however also entitled to sue the Customer at their place of residence.
(2) The laws of the Federal Republic of Germany shall apply; the UN Sales Convention is excluded.
(3) Unless the order confirmation states otherwise, our registered office shall be the place of performance.
Status/Version: February 2007