§ 1 General
(1) The following Terms and Conditions of Sale shall apply exclusively to all deliveries and services, including those arising from future business transactions. We do not recognize any terms and conditions of the buyer that conflict with or deviate from our Terms and Conditions of Sale unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale shall also apply if, in knowledge of conflicting or deviating terms and conditions of the buyer, we make delivery to the buyer without reservation.
(2) All agreements made between the Buyer and us are set out in writing in this contract. The written form is also mandatory for any additions and amendments.
(3) Agreements concluded by our sales representatives require our written confirmation to be valid.
(4) Our terms and conditions of sale apply only to businesses as defined in Section § 310 (1) of the German Civil Code (BGB).
§ 2 Quotations – Prices
(1) Our quotations are always non-binding. Each transaction is only concluded upon our written order confirmation.
(2) All prices shall only apply to the deliveries that have been firmly agreed upon in each case; they shall not be binding for repeat orders.
(3) Unless otherwise agreed in individual cases, all prices are quoted ex works or ex our distribution warehouse. The buyer shall bear the costs of shipping, as well as taxes, fees, duties, and other costs. In the case of deliveries abroad, the buyer shall also bear all other costs associated with the shipment abroad; the buyer shall assume sole liability for the duties applicable to the goods until final customs clearance.
(4) If, after the conclusion of the contract, additional costs arise in relation to the goods to be delivered by us that were not foreseeable at the time the contract was concluded, such as newly introduced or increased customs duties, freight charges, taxes, and other levies, we shall be entitled to increase the agreed price by no more than the amount of these costs. The same shall apply if, during the performance of the contract, the international monetary value of the euro changes, provided that, at the time the contract was concluded, a specific value of the euro in relation to another currency was used as the basis. Should circumstances of the aforementioned nature arise that lead to an increase in the price of ordered goods, we are obliged to notify the buyer of this without delay. The buyer may withdraw from the contract within 6 weeks of receiving this notification. In such a case, the buyer shall not be entitled to any claims for compensation.
(5) If free shipping has been agreed upon, in the case of urgent shipments, express shipments, priority parcel shipments, etc., the buyer shall bear the difference between the standard freight or postage costs and the actual costs.
(6) No reimbursement shall be provided for customer pickup.
(7) We will only take out transport insurance at the buyer’s express written request. The buyer shall bear the costs of any such insurance.
§ 3 Deliveries – Deadlines
(1) Delivery deadlines shall only be binding if we have expressly confirmed the relevant deadline in writing in advance.
(2) Our compliance with our delivery obligation is contingent upon the buyer’s timely and proper fulfillment of its obligations. We reserve the right to plead non-performance of the contract. If the buyer is in default of acceptance or if the buyer culpably breaches other obligations to cooperate, we shall be entitled to claim compensation for the damage incurred by us in this respect, including any additional expenses.
(3) In the case of call orders, the individual deliveries must be requested in sufficient time to enable us to meet any agreed delivery dates. Even in the case of call orders, we are entitled to manufacture the entire order quantity immediately. In this case, any requests for changes can no longer be accommodated after the order has been placed.
(4) We are liable in accordance with the statutory provisions if the underlying purchase contract is a fixed-date transaction within the meaning of § 286 (2) (4) BGB or § 376 of the German Commercial Code (HGB). We are also liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the buyer is entitled to claim that its interest in the further performance of the contract has ceased to exist. Furthermore, we are liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible, or to culpable breach of an essential contractual obligation. Any fault on the part of our representatives or vicarious agents shall be attributed to us. Unless the delay in delivery is due to an intentional breach of contract for which we are responsible, our liability for damages is limited to the typically occurring damage that was foreseeable at the time the contract was concluded. In any event, for each full week of delay, we shall only be liable for up to 1% of the delivery value, but not exceeding 5% of the delivery value in total. Beyond this, our liability for delays is excluded.
(5) We are only obliged to deliver goods from our own production and from the quantities of goods actually available to us.
(6) In the event of extraordinary events, whether in Germany or abroad, that are beyond our control, that are unforeseeable for us despite exercising due care, and that, taking into account our other delivery obligations, prevent us from making a delivery in accordance with the contract or allow us to do so only under economically unreasonable conditions, we may restrict or suspend delivery for the duration of the hindrance or, in the event of a prolonged hindrance, withdraw from the contract or terminate it without notice. Examples of extraordinary events include war or warlike conditions and their consequences, civil unrest, operational disruptions through no fault of our own, industrial action, restrictive official or legislative measures, and hindrances to or delays in transport. If events of the aforementioned nature led to a significant increase in manufacturing, procurement, or distribution costs, we may, upon notice, increase the price, even if a fixed price has been agreed, by no more than the amount of the additional costs. § 2 (4) shall apply mutatis mutandis.
(7) For made-to-order goods, over- or under-deliveries of up to 10% of the agreed order quantity are permitted.
(8) Parts provided by the Buyer for further processing must conform to the drawings. Any costs for reworking or return shipment shall be borne by the buyer. The quantity of parts sent in must exceed the number of finished items ordered by at least 10%.
§ 4 Acceptance and default in acceptance
(1) The buyer shall also be in default of acceptance of the goods if we offer delivery to the buyer in writing and the buyer refuses to accept the goods.
(2) In as far as we are entitled to claim damages for non-performance in the event of non-acceptance, we shall be entitled to calculate the damages on a specific basis. The buyer has the right to prove that the damage incurred was of a lower amount.
§ 5 Intra-Community deliveries
(1) The Buyer warrants that it is acting as an entrepreneur for each instance of a tax-exempt intra-Community delivery, transport, dispatch, or collection, as well as for instances of a tax-exempt service. Therefore, the Buyer or its agent is obliged to provide and disclose to us all necessary documents for the accounting or documentary evidence of an intra-Community delivery, transport, dispatch, or collection.
(2) This notably applies to:
- the VAT identification number,
- the buyer’s declaration of use within the scope of its foreign business, together with an acknowledgment of receipt by the buyer or its representative,
- information on the place of destination in the rest of the Community (confirmation of arrival), and
- information on the Buyer’s line of business or profession.
(3) Should the Buyer fail to comply with these provision obligations of its own volition, the Buyer shall be fully liable for the resulting consequences; in particular, the Buyer shall promptly pay to us any additional value-added tax, interest, and late payment surcharges that may be claimed, as well as reimburse us for any additional expenses incurred by us.
(4) We are only obliged to pursue legal remedies at the buyer’s request if, in addition to paying the aforementioned amounts, the buyer provides an appropriate advance on the costs of the legal remedy proceedings.
§ 6 Shipping method – Transfer of risk
(1) Unless otherwise agreed, the shipping method shall be at our discretion.
(2) The risk of accidental loss of and accidental damage to the goods shall pass to the Buyer as soon as the goods leave our factory or distribution warehouse. If, at the buyer’s request, we ship the goods to a destination specified by the buyer, the risk of transport – even in the case of “carriage paid” delivery – shall pass to the buyer upon handover of the goods to the forwarding agent, the carrier, or any other person or entity designated for the shipment.
§ 7 Industrial property rights – Consultancy – Intellectual property
(1) If we manufacture products according to the buyer’s specifications, the buyer warrants that the manufacture and distribution of these products do not infringe any third-party industrial property rights. The buyer is obliged to indemnify us against any liability to third parties or against claims by third parties arising in connection with the manufacture or distribution of the products in question.
(2) We provide technical information and/or advice solely as non-binding recommendations; we assume no warranty and no liability in this regard. The buyer is responsible for conducting its own checks, including with regard to the information contained in documents provided by us, and also with regard to whether any third-party industrial property rights exist.
(3) Designs, drawings, manufacturing and assembly documents, etc., developed by us are and shall remain our intellectual property, including all rights thereto. If they are handed over to the buyer, they are entrusted to the buyer within the meaning of § 18 of the German Act against Unfair Competition (UWG). Any transfer of rights of use beyond those necessary for the performance of the contract requires an express written agreement, regardless of whether special protection rights exist or not.
§ 8 Claims for defects
(1) Any claims by the buyer for defects are contingent upon the buyer having duly fulfilled its obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB). The buyer is obliged to carefully inspect the goods immediately upon receipt. If necessary, the buyer shall conduct a test processing operation to determine whether the delivered goods are free from defects and suitable for their intended use. Defects must be reported to us in writing no later than 3 days after delivery of the goods, without prejudice to shorter notice periods vis-à-vis the carrier; otherwise, our liability shall be excluded.
(2) The buyer bears the full burden of proof for all prerequisites for a claim, in particular for the defect itself, for the time at which the defect was discovered, and for the timeliness of the notice of defect.
(3) In the event of any defects, we shall initially, at our own discretion, fulfill our warranty obligation by either remedying the defect (repair) or by delivering a defect-free item (replacement). If our supplementary performance is unsuccessful, the buyer may, at its discretion, either demand a reduction in the price or withdraw from the contract. In particular, a remedy shall be deemed to have failed if we have not rectified the defect even after the third attempt at remedy. At any point during the attempts at rectification, we are also entitled to opt for supplementary performance. In the event of only minor defects or only minor deviations in quality, the buyer shall not be entitled to withdraw from the contract.
(4) If, after a failed attempt at subsequent performance, the buyer chooses to withdraw from the contract due to a defect in title or quality, the buyer shall not be entitled to any additional claim for damages based on the defect. If, after a failed attempt at subsequent performance, the buyer chooses to claim damages, the goods shall remain with the buyer if this is reasonable for them. Damages shall be limited to the difference between the purchase price and the value of the defective item. This shall not apply if we have caused the breach of contract fraudulently.
(5) We are liable in accordance with the statutory provisions if the buyer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Unless we are accused of an intentional breach of contract, our liability for damages is limited to the typically occurring average damage that was foreseeable at the time the contract was concluded.
(6) Furthermore, we are liable in accordance with the statutory provisions if we culpably breach an essential contractual obligation; in this case, however, our liability for damages is limited to the foreseeable, typically occurring average damage.
(7) Liability for culpable injury to life, limb, or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
(8) Unless otherwise stipulated above, our liability is excluded.
(9) The limitation period for defect claims is 12 months from the delivery of the goods, irrespective of the buyer’s knowledge of the defect.
(10) This shall not apply if the sold item can be and has been used for a structure and has caused a defect in the structure; Section 9 (1) (5) shall remain unaffected.
(11) The limitation period in the event of a delivery recourse claim pursuant to §§ 478 and 479 of the German Civil Code (BGB) shall remain unaffected; this shall be five years, calculated from the date of delivery of the defective item.
(12) The buyer does not receive any guarantees in the legal sense. Manufacturer warranties shall remain unaffected.
(13) In principle, the quality of the goods shall be deemed to be as agreed in the product description provided by us. Furthermore, public statements, promotional claims, or advertising relating to the goods do not constitute a contractually binding statement regarding the quality of the goods. Samples provided by us serve only as non-binding indications of the average performance of the goods.
(14) In the event of rectification of a defect, we are obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport costs, travel costs, labor costs, and material costs, provided that these costs are not increased by the fact that the purchased goods have been taken to a location other than the place of performance.
§ 9 Limitations of liability
(1) In the event of breaches of duty resulting from slight negligence, our liability is limited to the direct, average damage that was foreseeable at the time the contract was concluded, taking into account the nature of the goods or services and the type of contract. This shall also apply in the event of slightly negligent breaches of duty by our legal representatives, executive employees, or vicarious agents. We shall not be liable for slightly negligent breaches of minor contractual obligations.
(2) The above limitations of liability shall apply irrespective of the legal nature of the claim asserted, in particular claims arising from delay, other breaches of duty, or tort. They do not apply to damages attributable to us resulting from injury to life, limb, or health, or to claims made by the buyer under product liability.
(3) In as far as these terms and conditions exclude damages in lieu of performance, the reimbursement of expenses pursuant to § 284 BGB is also excluded.
(4) The buyer’s claims for damages based on a defect shall become time-barred one year after delivery of the goods. This shall not apply if we are guilty of gross negligence, as well as in the event of bodily injury or damage to health for which we are responsible, or in the event of the customer’s death. The statute of limitations also applies to the personal liability of our employees, representatives, and vicarious agents.
§ 10 Payment
(1) The purchase price shall be paid in full immediately upon receipt of the invoice, unless a different payment arrangement has been made. Payment shall be deemed timely only if the funds are available to us in the account specified by us on the due date. If payment is not made within the agreed period or within the period stipulated by law, we shall be entitled to charge default interest at the statutory rate. We are also entitled to claim further damages resulting from the delay in payment, although the buyer retains the right to provide evidence that the damages incurred were less than the amount claimed.
(2) Checks and bills of exchange shall only be accepted as conditional payment. Costs and expenses shall be borne by the buyer.
(3) In the event of a deterioration in the buyer’s financial situation, we shall be entitled to refuse performance. After setting a deadline, we shall be entitled to only perform our obligations concurrently with receipt of the corresponding payment or to demand security from the buyer. If the deadline expires without success, we may withdraw from the contract.
A deterioration in the buyer’s financial situation shall be deemed to exist, in particular, if the buyer is no longer able to conduct its business operations in an orderly manner. This shall notably apply if
- a check or bill of exchange is protested,
- the buyer’s assets have been seized, or other enforcement measures have been threatened or initiated against the buyer,
- there is a delay in payments or payments are suspended,
- judicial or extrajudicial settlement proceedings occur,
- there are insolvency proceedings concerning the buyer, or
- proceedings are filed under the Insolvency Code,
or if similar circumstances exist that cast doubt on the buyer’s creditworthiness.
The buyer is obliged to inform us directly and immediately, without being requested to do so, if any of these circumstances or a similar circumstance arises.
Goods delivered by us that are still stored at the buyer’s premises must be separated out immediately, and it must be made clear that they are our property.
We reserve the right to assert all other statutory claims based on default.
(4) Offsetting against any counterclaims disputed by us and not legally established shall not be permitted. A right of retention shall only be permitted if it is undisputed and based on the same contractual relationship.
§ 11 Retention of Title – Security
(1) We retain title to the purchased goods until final payment of all claims against the buyer, including any claims arising in the future from our mutual business relationship. In the event of a breach of contract by the buyer, in particular in the event of default in payment, we shall be entitled to repossess the purchased goods. This shall also apply if a petition is filed to open insolvency proceedings against the buyer’s assets. Our repossession of the purchased item shall not constitute a withdrawal from the contract unless we have expressly declared this in writing. After repossessing the purchased item, we are entitled to dispose of it; the proceeds from the disposal shall be applied to offset the buyer’s liabilities, minus reasonable disposal costs.
(2) The buyer is obliged to treat the purchased goods with care; in particular, the buyer is obliged, at its own expense, to insure the goods adequately against fire, water, and theft damage at replacement value. The buyer hereby assigns to us, in advance, any claims arising from a loss event, in particular claims against the insurer, as security for our claims, up to the amount of our claims. We hereby accept this assignment.
(3) In the event of seizures or other interventions by third parties, the buyer must notify us in writing without delay and provide us with all documents necessary for the intervention so that we can file a lawsuit pursuant to § 771 of the German Code of Civil Procedure (ZPO). If the third party is unable to reimburse us for the judicial and extrajudicial costs of a legal action or for the replacement of the goods, the buyer shall be liable for the loss incurred by us.
(4) The buyer shall be entitled to resell the purchased goods in the ordinary course of business, but not to pledge them or assign them as security. The buyer hereby assigns to us, in advance, all claims up to the final invoice amount (including value-added tax) of our claim that arise for the buyer from the resale to the buyer’s customers or third parties, regardless of whether the purchased goods have been resold without or after processing. We hereby accept this assignment. The buyer shall remain authorized to collect this claim even after the assignment. Our right to collect the claim ourselves shall remain unaffected by this. However, we undertake not to collect the claim as long as the buyer meets any payment obligations from the proceeds received, does not fall into default of payment, and, in particular, no petition has been filed to open insolvency proceedings or payments have not been suspended. If this is the case, we may demand that the buyer inform us of the assigned claims and their debtors, provide us with all information necessary for collection, hand over the relevant documents, and notify the debtors (third parties) of the assignment.
(5) If the purchased goods are inseparably processed or combined with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the purchased goods (final invoice amount including value-added tax) relative to the other processed or combined items at the time of processing or combination. If the processing or combination is carried out in such a way that the buyer’s item is to be regarded as the main item, it is hereby agreed that the buyer shall transfer co-ownership to us on a pro rata basis. The buyer shall hold the resulting sole ownership or co-ownership in trust for us.
(6) We undertake to release the collateral to which we are entitled at the buyer’s request if the realizable value of our collateral exceeds the claims to be secured by more than ten percent; the choice of the collateral to be released shall be at our discretion.
(7) The buyer grants us the right to enter its business and storage premises, or those premises in which the goods subject to retention of title are located, and to remove the goods subject to retention of title from there, provided that the necessary conditions are met. The buyer hereby waives in advance any right to object to the removal of the goods.
§ 12 Place of jurisdiction – Place of performance
(1) If the buyer is a merchant, a legal entity under public law, or a special fund under public law, the place of jurisdiction shall be our registered office; however, we shall also be entitled to bring an action against the buyer at the court having jurisdiction over its place of residence. The same shall apply if the buyer does not have a general place of jurisdiction in Germany or if their domicile or habitual place of residence is not known at the time the action is brought.
(2) The place of performance for the delivery shall be the respective dispatch warehouse or plant. The place of performance for the buyer’s payment obligation shall be Henstedt-Ulzburg.
(3) The law of the Federal Republic of Germany shall apply; the application of the UN Convention on Contracts for the International Sale of Goods is excluded.
