General

1. All deliveries and services are based on these conditions and any separate contractual agreements. Deviating purchasing conditions of the buyer do not become part of the contract, even if the order is accepted. In the absence of a special agreement, a contract is concluded with the written order confirmation from the seller.

2. The seller reserves the right to samples, cost estimates, drawings, etc. Information of a tangible and intangible nature – also in electronic form – has property rights and copyrights; they may not be made accessible to third parties. The seller undertakes to make information and documents designated as confidential by the buyer accessible to third parties only with the buyer’s consent.

Delivery, delivery time, delays and place of performance

1. The place of performance for all services arising from the delivery contract is the location of the seller’s commercial establishment.

2. The goods are delivered ex works. Shipping costs are borne by the buyer.

3. Packaging costs for special packaging are borne by the buyer.

4. Partial deliveries that are sorted and, in the case of combinations, suitable for sale are permitted insofar as they are reasonable for the buyer or have been announced in advance. Unsorted partial deliveries are only permissible with the consent of the buyer.

5. The risk passes to the buyer when the delivery item has left the factory, even if partial deliveries are made or the seller has taken on other services, such as shipping costs or delivery and installation. Insofar as an acceptance has to take place, this is decisive for the transfer of risk. It must be carried out immediately on the acceptance date, alternatively after the seller’s notification of readiness for acceptance. The buyer may not refuse acceptance if there is a non-essential defect.

6. If the shipment or acceptance is delayed or does not take place as a result of circumstances for which the seller is not responsible, the risk is transferred to the buyer from the day on which the readiness for shipment or acceptance is reported.

7. The delivery time results from the agreements of the contracting parties. Compliance with them by the seller presupposes that all commercial and technical questions between the contracting parties have been clarified and that the buyer has fulfilled all his obligations. If this is not the case, the delivery time will be extended appropriately, unless the seller is responsible for the delay.

8. If the buyer is not responsible for shipping or acceptance, the seller has the right, after setting a grace period of 12 days, to either issue an invoice for the arrears or to withdraw from the contract or to demand compensation.

9. If non-compliance with the delivery time is due to force majeure, labor disputes or other events beyond the seller’s control, the delivery time will be extended appropriately. Seller will notify Buyer of the beginning and cessation of such circumstances as soon as possible.

10. The buyer can withdraw from the contract without setting a deadline if the seller is finally unable to perform the entire service before the transfer of risk. The buyer can also withdraw from the contract if it is impossible to carry out part of the delivery of an order and he has a legitimate interest in refusing the partial delivery. If this is not the case, the buyer must pay the contract price for the partial delivery. The same applies to the inability of the seller.

11. If the impossibility or inability occurs during the delay in acceptance or if the buyer is solely or largely responsible for these circumstances, he remains obliged to provide consideration.

12. If the buyer sets the seller a reasonable deadline for performance after the due date – taking into account the statutory exceptions – and the deadline is not met, the buyer is entitled to withdraw within the framework of the statutory provisions.

Prices and Payment

1. In the absence of a special agreement, the prices apply ex works including loading in the works, but excluding unloading. Sales tax is added to the prices at the respective statutory rate.

2. In the absence of a special agreement, payment is to be made without deductions.

3. In the case of delivery, the currently valid price offer from the seller is decisive

4. The seller’s invoices are accepted if no objection is made within one week of receipt of the invoice. This does not apply if the reason for the complaint is not recognizable for the buyer within the week period, even after careful examination. In this case, the complaint must be made immediately after the reason for the complaint has become apparent.

5. Unless a special provision or agreement has been made, payment must be made within 30 days of invoicing of the amount shown in the invoice without deduction.

6. If circumstances become known that call into question the buyer’s creditworthiness, in particular if the buyer does not cash a check or stops paying, the seller is entitled to make all claims against the buyer due immediately. In this case, the seller is still entitled to demand advance payment or security deposit or to withdraw from the contract.

7. In the case of payments after the due date, interest on arrears will be charged at a rate of 6% p.a. above the base interest rate. Payments are only deemed to have been made when the seller can dispose of the amount. We expressly reserve the right to refuse checks or bills of exchange. Discount and bill of exchange charges are at the expense of the buyer and are due immediately. The seller is not liable for timely submission. In the case of payment by check, the day of receipt is the day on which the check amount is irrevocably credited to the seller’s account. In principle, the seller is entitled to offset payments against older debts of the buyer and will inform the buyer of the type of offsetting that has taken place. This also applies in the case of different provisions of the buyer. If costs and interest have already been incurred, the seller is entitled to offset the payment first against the costs, then against the interest and finally against the main service.

8. The buyer only has the right to withhold payments or offset them against counterclaims insofar as his counterclaims are undisputed or have been legally established.

Retention of title

1. The goods remain the property of the seller until full payment of all claims from the delivery of goods from the entire business relationship, including ancillary claims, claims for damages and cashing of checks and bills of exchange. The retention of title also remains in place if individual claims of the seller are included in a current account and the balance is drawn and acknowledged.

2. If the reserved goods are combined, mixed or processed by the buyer to form a new movable item, this is done for the seller without the seller being obliged to do so. By connecting, mixing or processing, the buyer does not acquire ownership of the new item in accordance with §§ 947 et seq. BGB. In the event of connection, mixing or processing with items not belonging to the seller, the seller acquires co-ownership of the new item in the ratio of the invoice value of his reserved goods to the total value.

3. If a central regulator is involved in the business transaction between seller and buyer, which takes over the del credere, the seller transfers ownership to the central regulator upon dispatch of the goods with the condition precedent that the purchase price be paid by the central regulator. The buyer is only released when payment has been made by the central regulator.

4. The buyer is only entitled to resell or further processing under consideration of the following conditions.

5. The buyer may only sell or process the reserved goods in the ordinary course of business and provided that his financial situation does not deteriorate over the long term.

6. The buyer hereby assigns the claim with all ancillary rights from the resale of the reserved goods – including any balance claims – to the seller.
If the goods have been combined, mixed or processed and the seller has acquired co-ownership of this in the amount of the invoice value, he is entitled to the purchase price claim in proportion to the value of his rights to the goods.

If the buyer has sold the claim under genuine factoring, the buyer assigns the claim against the factor taking its place to the seller and forwards the proceeds of the sale to the seller in proportion to the value of the seller’s rights to the goods. The buyer is obliged to disclose the assignment to the factor if he is more than 10 days overdue in paying an invoice or if his financial circumstances deteriorate significantly. The seller accepts this assignment.

7. The buyer is authorized to collect the assigned claims as long as he meets his payment obligations. The direct debit authorization expires if the buyer defaults in payment or if the buyer’s financial situation deteriorates significantly. In this case, the seller is hereby authorized by the buyer to inform the customer of the assignment and to collect the claims himself.

In order to assert the assigned claims, the buyer must provide the necessary information and allow this information to be checked. In particular, he must provide the seller with a precise list of the claims to which he is entitled, including the name and address of the customer, the amount of the individual claims, the date of the invoice, etc., upon request.

8. If the value of the security existing for the seller exceeds all claims by more than 10%, the seller is obliged to release securities of his choice at the request of the buyer.

9. Pledges or security transfers of the reserved goods or the assigned claims are not permitted. The seller is to be informed immediately of seizures, stating the name of the seizure creditor.

10. If the seller takes back the delivery item in exercising his retention of title, this is only a withdrawal from the contract if the seller expressly declares this. The seller can satisfy himself from the reserved goods taken back by private sale.

11. The buyer keeps the goods subject to retention of title for the seller free of charge. He has to insure them against the usual risks, such as fire, theft and water to the usual extent. The buyer hereby assigns to the seller his claims for compensation to which he is entitled from damage of the above-mentioned type against insurance companies or other parties liable to pay compensation in the amount of the invoice value of the goods. The seller accepts the assignment.

Notification of defects, claims for defects

For material and legal defects in the delivery, the seller provides the following to the exclusion of further claims:

1. Notices of defects must be sent to the seller within 12 days of receipt of the goods at the latest.

2. After the delivered goods have been cut or processed in any other way, any complaints about obvious defects are excluded.

3. Minor, technically unavoidable deviations in quality, color, width, weight, finish or design may not be objected to. This also applies to customary deviations, unless the seller has declared in writing that the delivery will be true to the sample.

4. In the case of justified notices of defects, the seller has the right to choose whether to rectify the defect or to deliver replacement goods free of defects. In this case, the seller bears the freight costs. After agreement with the seller, the buyer must give the seller the necessary time and opportunity to carry out all repairs and replacement deliveries that the seller deems necessary; otherwise the seller is released from liability for the resulting consequences. Only in urgent cases of endangering operational safety or to prevent disproportionately large damage, in which case the seller must be informed immediately, does the buyer have the right to have the defect remedied himself or through a third party and to demand reimbursement of the necessary expenses from the seller.

5. The buyer has the right to withdraw from the contract within the framework of the statutory provisions if the seller – taking into account the statutory exceptions – allows a reasonable deadline set for the rectification or replacement delivery due to a material defect to elapse without result. If there is only an insignificant defect, the buyer only has the right to reduce the contract price. The right to reduce the contract price is otherwise excluded.

6. No guarantee is given in the following cases:
Unsuitable or improper use, incorrect assembly by the buyer or third parties, natural wear and tear, incorrect or negligent treatment, chemical, electrochemical or electrical influences, unless the seller is responsible for them.

7. If the buyer or a third party makes improper improvements, the seller is not liable for the resulting consequences.

8. If the use of the delivery item leads to an infringement of industrial property rights or copyrights in Germany, the seller will, at his own expense, provide the buyer with the right to continue using it or modify the delivery item in a way that is reasonable for the buyer in such a way that the infringement of property rights is no longer consists.

If this is not possible under economically reasonable conditions or within a reasonable period of time, both the buyer and the seller are entitled to withdraw from the contract. In addition, the seller will release the buyer from undisputed or legally established claims of the relevant property right holder.

9. Subject to section “Liability 2.”, the seller’s obligations specified in the “Defects” section are final in the event of an infringement of industrial property rights or copyrights.

They only exist if:
the buyer informs the seller immediately of alleged infringements of industrial property rights or copyrights,
the buyer supports the seller to a reasonable extent in defending against the asserted claims or enables the seller to carry out the modification measures in accordance with section “Defects 8.”,
the seller reserves the right to take all defensive measures, including out-of-court settlements,
the defect in title is not based on an instruction from the buyer and
the violation of rights was not caused by the fact that the buyer arbitrarily modified the delivery item or used it in a manner that was not in accordance with the contract.

10. Further claims are excluded. This applies in particular to claims for compensation for direct and indirect consequential damage that did not occur on the goods themselves.

Liability

1. If the delivery item cannot be used by the buyer in accordance with the contract due to the fault of the seller as a result of omitted or incorrect execution of suggestions and advice given before or after the conclusion of the contract or due to the violation of other contractual ancillary obligations – in particular instructions for operation and maintenance of the delivery item – the following shall apply to the exclusion of further claims by the buyer, the provisions of the sections “Defects” and “Liability 2:” accordingly.

2. The seller is only liable – for whatever legal reason – for damage that did not occur on the delivery item itself

a) in the case of intent,
b) in the event of gross negligence on the part of the owner / the organs or executives,
c) in the event of culpable injury to life, limb or health,
d) in the case of defects which he has fraudulently concealed or whose absence he has guaranteed,
e) in the case of defects in the delivery item, insofar as there is liability under the Product Liability Act for personal injury or property damage to privately used items.

In the event of a culpable breach of essential contractual obligations, the seller is also liable for gross negligence on the part of non-managerial employees and for slight negligence, in the latter case limited to the contractually typical, reasonably foreseeable damage. Further claims are excluded.

3. Claims for damages due to significant breaches of contractual obligations are limited to the direct, foreseeable damage typical of the contract, provided there is no gross negligence or intent.

4. Liability for contract-typical, foreseeable damage (3.) is limited to the amount of the respective order value.

5. The seller is in no way liable for indirect damage and consequential damage.

statute of limitations

All claims of the buyer – for whatever legal reason – become time-barred in 12 months. Statutory deadlines apply to claims for damages under Section “Liability 2.” They also apply to defects in a building or to delivery items that have been used for a building in accordance with their normal use and have caused the building to be defective.

place of jurisdiction

1. The law of the Federal Republic of Germany, which is decisive for the legal relationships between domestic parties, applies exclusively to all legal relationships between the seller and the buyer. The United Nations Convention on Contracts for the International Sale of Goods dated April 11, 1980 is excluded.

2. The place of jurisdiction is the court responsible for the seller’s registered office. However, the seller is entitled to bring an action at the buyer’s headquarters.

Status: 12/2016