§ 1 General provisions – Area of application
- Our terms of sale apply exclusively; we do not recognize opposing or other conditions deviating from our terms of sale on part of the customer, unless we have expressly agreed to them in writing. Our terms of sale apply, even if we unreservedly complete delivery to the customers while being aware of opposing or other conditions deviating from our terms of sale.
- All agreements made between us and the customer for the execution of the present contract, are stipulated in writing in the present contract.
- Our terms of sale only apply to merchants in the sense of § 310 sec. 1 BGB.
§ 2 Offer – Offer documents
- If the order qualifies as offer in accordance with § 145 BGB, we can accept this offer within 2 weeks.
- We reserve property and copy rights for illustrations, designs, calculations and other documents. This also applies to written documents, labelled “confidential”. Prior to any third party disclosure the customer requires our expressed written agreement.
§ 3 Prices – Terms of payment
- Unless otherwise stated in the confirmation of order, our prices are valid “ex factory”, including packaging.
- The legal value added tax is not included in our prices; it will be shown separately in the invoice in the legal amount valid on the day of rendering.
- Deduction of any discount is subject to special written agreement.
- Unless otherwise stated in the confirmation of order, the purchase price is due in the net amount (without deduction) within 30 days starting from the invoice date. The legal rules on consequences in case of delay of payment apply.
- The customer is only entitled to exercise set-off rights, if his counterclaims are legally valid, undisputed or recognized by us. To that extent he is additionally entitled to exercise his right of lien, when his counterclaim is based on the same contractual relation.
- We are liable according to legal regulations, if we culpably violate a substantial contract obligation; however, also in this case, payment of damages is limited to the foreseeable, typically occurring damage.
- As far as the customer is entitled to a substitution of the damage instead of the service, our liability also in the context of sec. (3) is limited to the substitution of the foreseeable, typically occurring damage.
- Liability due to culpable injury of life, body or health remains unaffected; this also applies to the mandatory liability according to the product liability law.
- Unless otherwise stated in the previous provisions, liability is excluded.
- The limitation period for defect claims is 12 months starting from the transfer of risk.
- The limitation period in case of a delivery regress as per §§ 478, 479 BGB [German Civil Code] remains unaffected; it amounts to five years, starting from the delivery of the defective good.
§ 4 Delivery time
- The beginning of the delivery time stated by us preconditions the clarification of all technical questions.
- Adherence to our delivery obligation furthermore presupposes punctual and normal fulfilment of obligations on part of the customer. The defence of non-fulfilment of contract remains reserved.
- If the customer is in default of acceptance or violates other obligations to cooperate, we are entitled to claim damages to the extent developed including any additional expenses. Further claims and rights remain reserved.
- If the provisions of sec. (3) apply, the hazard of loss by accident or accidental deterioration of the object of sale is transferred to the customer at the point in time he defaults in taking delivery or making payment.
- We shall be liable in accordance with the law, provided that the underlying sales contract is a fixed transaction in the context of § 286 sec. 2 no. 4 BGB or of § 376 HGB 376 HGB. We are also liable according to the legal regulations, if the interest of the customer of fulfilment of the contract ceased to exist due to a delayed delivery for which we are responsible.
- We are furthermore liable according to the legal regulations, if the failure to deliver is based on an intentional or grossly negligent violation of contract; culpability of our representatives or agents shall be attributed to us. If the failure to deliver is based on a grossly negligent violation of contract which can be attributed to us, our payment of damages is limited to the typically foreseeable damage.
- We are also liable according to the legal regulations if the failure to deliver which can be attributed to us is based on the culpable injury of a substantial contract obligation; in this case however the payment of damages is limited to the foreseeable, typically occurring damage.
- For the rest, in case of delayed delivery, we are liable for every completed week of delay in the context of a lump-sum compensation for delay of 3 percent of the value of the goods, which however shall not exceed 15 percent of the delivery value.
- Further legal claims and rights of the customer remain reserved.
§ 5 Transfer of risk – Packaging costs
- Unless otherwise stated in the confirmation of order, “ex factory” delivery is agreed upon.
- Separate agreements apply for the return of packaging.
- Upon customer request, we will provide transport insurance cover for delivered items; to that extent the customer bears the resulting cost.
§ 6 Warranty for defects
- The customer’s warranty claim presupposes that he has properly fulfilled his obligations to inspect and notify defects in accordance with § 377 HGB.
- To the extent that a purchased good is defective, the customer can, at his discretion, request subsequent performance in the form of removal of the defect or in the form of delivery of a new defect-free product. In case of removal of defects or replacement, we are under obligation to take over all necessary transportation, shipping, work and material costs, to the extent that they are not increased by the fact that the good was brought to a location other than the place of fulfilment.
- In case remedy fails, the customer is entitled to withdraw from the contract or demand a price reduction.
- We are liable according to the legal regulations, if the customer claims compensation for damages due to intent and gross negligence, including the intent and gross negligence of our representatives or subcontractors. To the extent that we are not accused of intentional violation of contract, liability for damages is limited to the foreseeable and typically occurring damage.
§ 7 Joint and several liability
- Liability exceeding the payment of damages as outlined in § 6 is excluded without consideration of the legal nature of the asserted claim. This applies in particular to damage claims from fault at the conclusion of the contract, due to other violations of duty or tortuous compensation claims for property damage in accordance with § 823 BGB.
- The limitation according to sec. (1) also applies, as far as the customer instead of a claim for damages requests compensation for useless expenses rather than the performance of services.
- Providing our liability for damages has been excluded or limited, this also applies for the personal liability for damages of our employees, representatives and agents.
§ 8 Retention of title
- We reserve the title to the goods until all payments resulting from the supply contract have been received. In the event of a violation of contract by the customer, especially a delay in payment, we are entitled to take back the goods. Our taking back of the object sold shall constitute a rescission of the contract. We are entitled to reuse the good after we have withdrawn it, liquidation proceeds are to be charged to the liabilities of the customer – minus appropriate liquidation costs.
- The customer is obliged to treat the good with care; he is especially obliged to insure it sufficiently at his own expense against fire, water and theft damages to the replacement value. As far as maintenance and inspection work are required, the customer must perform such work at his own costs on time.
- In the event of any seizures or other interventions by third parties, the customer must inform us immediately in writing, so that a suit can be filed in accordance with § 771 ZPO [German Code of Civil Procedure ]. Should the third party not be in a position to refund the court and out-of-court costs incurred as a result of a successful suit in accordance with § 771 ZPO, the customer shall be held liable for the losses incurred.
- The customer is entitled to resell the good sold in the ordinary course of business; he shall, however, assign to us here and now any claims amounting to the total sum invoiced (including VAT) accruing from the resale to the buyer or any third party, regardless of whether the object of sale was resold with or without further processing. The customer remains entitled to assert the claim even after having assigned the claim. Our authorisation to collect the debt ourselves remains unaffected. However, we obligate ourselves not to collect the debt, if the customer fulfils his obligation to pay from the sale, if he is not delinquent in payment, and especially if no request for a bankruptcy procedure has been filed, or if no cessation of payments is at hand. However, if any of the above is in fact the case, we have the right to demand that the customer make the ceded debts and their debtors known to us, provide us with all the necessary details and documents and also that he notifies the debtors (third parties) of the surrender.
- Any processing and reorganisation of the object of sale by the customer shall always be considered to be carried out for us. If the purchased goods are processed jointly with other items not being our property, then we acquire co-ownership in the new items in relation of the value of the purchased goods to the other objects processed at the time of processing (invoice total including VAT). As for the rest, the same shall apply to the good arising due to processing as to the object of sale delivered under reserve.
- If the purchased goods are processed jointly with other items not being our property, we acquire co-ownership in the new items in relation of the value of the purchased goods to the other objects processed at the time of processing (invoice total including VAT). If the mixing takes place in such a manner that the material of the customer is to be viewed as the main thing, it is agreed upon that the customer transfers ownership to us proportionately. The customer thus retains sole property rights hereby created or joint ownership with and for us.
- The customer also assigns to us claims accruing from the combination of the delivered good with real property or against a third party.
- We undertake to release securities to which we are entitled to the extent that the value of our securities exceeds the value of the debts to be secured by more than 10%; the selection of the released securities remains at our discretion.
§ 9 Area of jurisdiction – Place of delivery
- If the customer is a merchant, our registered place of business is the area of jurisdiction; we are, however, also entitled to bring suit against the customer at the court in his area of residence.
- The laws of the Federal Republic of Germany apply; UN purchase law is excluded.
- Unless otherwise stated in the confirmation of order, our registered place of business is the place of delivery.