General Terms and Conditions of Delivery and Sale
§ 1 General, scope of application
(1) These General Terms and Conditions of Business, Delivery and Sale (hereinafter also referred to as “GTC”) shall apply to all our business relationships (contracts, offers, deliveries and other services) with our customers (hereinafter also referred to as “Buyer”). Our GTC shall only apply if the Buyer is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
(2) Our GTC shall apply in particular to contracts, including related services, for the sale and/or delivery of movable goods (hereinafter also referred to as “Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 650 BGB).
(3) Our General Terms and Conditions apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Buyer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer’s General Terms and Conditions.
(4) Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over our GTC. A written contract or our written confirmation shall be decisive for the content of such agreements.
(5) Legally relevant declarations and notifications to be made to us by the Buyer after conclusion of the contract (e.g. setting of deadlines, notification of defects, declaration of withdrawal or reduction) must be made in writing to be effective.
(6) References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in our GTC.
§ 2 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 ownership rights and copyrights.
(2) The order of the goods by the Buyer shall be deemed a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 1 week of its receipt by us.
(3) Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.
§ 3 Delivery period and delay in delivery
(1) The delivery period shall be agreed individually or specified by us upon acceptance of the order.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this immediately and at the same time inform the Buyer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the Buyer. A case of non-availability of the service in this sense is in particular the non-timely self-delivery by our supplier if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in individual cases.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the Buyer is required. If we are in default of delivery, the Buyer may demand lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, up to a maximum of 5% of the delivery value of the goods delivered late. We reserve the right to prove that the Buyer has suffered no loss at all or only a significantly lower loss than the above lump sum.
(4) The rights of the Buyer pursuant to § 8 of our GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§ 4 Delivery, transfer of risk, acceptance, default of acceptance
(1) Delivery shall be ex warehouse, which is also the place of performance. At the Buyer’s request and expense, the goods shall be shipped to another destination (sale to destination). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular our own delivery, transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest upon handover. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly to any agreed acceptance. If the Buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.
(3) If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this we shall charge a flat-rate compensation of 0.5% of the net price (delivery value) per completed calendar week, but no more than a total of 5% of the delivery value, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for dispatch.
Proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The buyer reserves the right to prove that we have suffered no loss at all or only a significantly lower loss than the amount of the above lump sum.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus VAT at the statutory rate.
Unless otherwise agreed, we deliver free of charge within Germany from a net order value of EUR 100.00, including packaging. Below a net order value of EUR 100.00, we charge a pro rata cost of EUR 5.00 for shipping and packaging. For orders with a net order value of less than EUR 50.00, we must charge a minimum quantity surcharge of EUR 5.00 plus the pro rata shipping and packaging costs for administrative reasons.
(2) In the case of sale by delivery to a place other than the place of performance (§ 4 para. 1 sentence 2 of our General Terms and Conditions), the Buyer shall bear the transportation costs ex warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
(3) The purchase price shall be due and payable without deduction within 10 days of invoicing and delivery or acceptance of the goods. In the case of contracts with a delivery value of more than EUR 10,000.00 (net), however, we shall be entitled to demand a down payment of 50% of the purchase price. The down payment shall be due and payable within 10 days of invoicing.
(4) Upon expiry of the above payment period, the Buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to claim further damages caused by default. Our claim against merchants for commercial maturity interest (§ 353 HGB) remains unaffected.
(5) The Buyer shall only be entitled to set-off or retention rights insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer’s counter-rights shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of our General Terms and Conditions.
(6) If it becomes apparent after conclusion of the contract that our claim to the purchase price is jeopardized by the Buyer’s inability to pay (e.g. by an application for the opening of insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (Section 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made products), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
§ 6 Retention of title
(1) We reserve title to the goods sold until full payment of all our current and future claims arising from the purchase contract and an ongoing business relationship (hereinafter also referred to as “secured claims”).
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before the secured claims have been paid in full. The buyer must inform us immediately in writing if and insofar as third parties have access to the goods belonging to us.
(3) If the Buyer acts in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and the withdrawal.
(4) The Buyer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The Buyer hereby assigns to us as security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the buyer mentioned in paragraph 2 shall also apply in consideration of the assigned claims.
(c) The Buyer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer meets his payment obligations to us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we can demand that the buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case, however, we shall also be entitled to notify and inform the debtors (third parties) of the assignment ourselves.
(d) If the realizable value of the securities exceeds our secured claims by more than 10%, we shall release securities of our choice at the buyer’s request.
§ 7 Claims for defects of the buyer
(1) The statutory provisions shall apply to the Buyer’s rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise specified below. In all cases, the special statutory provisions for final delivery of the goods to a consumer (supplier recourse pursuant to § 478 BGB) shall remain unaffected. Claims arising from supplier recourse are excluded if the defective goods have been further processed by the buyer or another entrepreneur, e.g. by installation in another product.
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. The product descriptions (including those of the manufacturer) designated as such, which were provided to the Buyer prior to his order or included in the contract in the same way as our General Terms and Conditions, shall be deemed to be an agreement on the quality of the goods.
(3) Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not (Section 434 (1) sentences 2 and 3 BGB). However, we accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
(4) The Buyer’s claims for defects presuppose that he has complied with his statutory obligations to inspect and give notice of defects (§§ 377, 381 II HGB). If a defect is discovered during the inspection or later, we must be notified immediately in writing. The notification shall be deemed immediate if it is made within one week, whereby the timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the Buyer must notify us in writing of obvious defects (including incorrect and short deliveries) within one week of delivery, whereby the timely dispatch of the notification is also sufficient to meet the deadline. If the Buyer fails to properly inspect the goods and/or report defects, our liability for the unreported defect shall be excluded.
(5) If the delivered item is defective, the Buyer may initially demand, at his discretion, either rectification of the defect (repair) or delivery of a defect-free item (replacement delivery). If the buyer does not declare which of the two rights he chooses, we can set him a reasonable deadline for this. If the Buyer does not make the choice within the deadline, the right to choose shall pass to us upon expiry of the deadline.
(6) We are entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.
(7) The Buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall not include the removal of the defective item or its reinstallation if we were not originally obliged to install it.
(8) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if a defect actually exists. Otherwise, we may demand compensation from the Buyer for 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 recognizable to the Buyer.
(9) If the subsequent performance has failed or a reasonable deadline to be set by the Buyer for the subsequent performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
(10) Claims of the Buyer for damages or reimbursement of futile expenses shall only exist in accordance with § 8 of our General Terms and Conditions and are otherwise excluded.
§ 8 Other liability
(1) Unless otherwise stated in our General Terms and Conditions, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) We shall be liable for damages – irrespective of the legal grounds – in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of an essential contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 shall also apply to breaches of duty by or in favor of persons whose fault we are responsible for according to statutory provisions. They shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same applies to claims of the buyer under the Product Liability Act.
(4) The Buyer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the Buyer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 9 Statute of limitations
(1) Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) However, if the goods are a building or an item that has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provisions (Section 438 (1) No. 2 BGB). Other special statutory provisions on the statute of limitations (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) remain unaffected.
(3) The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act remain unaffected in any case. Otherwise, the statutory limitation periods shall apply exclusively to the Buyer’s claims for damages pursuant to § 8 of our General Terms and Conditions.
§ 10 Returns
Unless it concerns the assertion of claims due to defects in the goods, our written consent must be obtained before the goods are returned. Goods can only be returned if they are complete, unused, undamaged, in their original packaging and unlabeled. Goods that have been specially ordered for the buyer as well as sterile products/sterile goods are excluded from return and exchange, provided they are free of defects. For each return of goods or exchange in this respect, we charge a handling fee of 20% of the net value of the goods, but at least €20.00, unless the return is due to an error on our part.
§ Section 10 of our General Terms and Conditions shall not apply if we are obliged to take back goods within the scope of our warranty.
§ 11 Recall
We may recall goods or cancel deliveries if this should be necessary to investigate suspected manufacturing defects and the like, in the event of defects and to avoid damage or the like. In this case, we shall, at our discretion, either refund the purchase price to the buyer or supply a replacement, to the exclusion of any other claims.
§ 12 Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these GTC and all legal relationships between us and the Buyer, to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Hof. However, we are also entitled to bring an action at the buyer’s general place of jurisdiction.
The buyer acknowledges that we store data from the contractual relationship in accordance with Art. 6 para. 1 lit. b and f GDPR for the purpose of data processing and reserve the right to transfer the data to third parties (e.g. insurance companies) if necessary for the fulfillment of the contract.