GENERAL TERMS AND CONDITIONS
These General Terms and Conditions (the Terms) apply to all deliveries, services and offers between us and the buyer, inasmuch as the buyer is an entrepreneur, corporate body under public law or special fund under public law. These terms and conditions shall also apply to future transactions, even if they are not referred to again or their validity explicity agreed, as long as they were received by the buyer at the time of a previous transaction. We hereby reject any buyer’s acknowledgements referring to his Terms of Business or Conditions of Purchase. Deviations from our Terms shall only be effective if we explicitly acknowledge them in writing.
Offer, conclusion of contract
All offers and details are subject to confirmation and are non-binding. Subject to goods being unsold. Orders and agreements only become binding on us following our written order confirmation or following delivery within the scope of these Terms. Verbal subsidiary agreements and promises require our written confirmation in order to take effect.
The ability to deliver remains subject to change. Delivery times or periods can only be agreed in writing and are subject to ability to deliver; as a matter of principle, they are considered only approximate. If we ourselves are delayed, the buyer shall specify an appropriate period of grace. He can only withdraw from the contract if the period of grace has expired and the goods have not been declared ready for dispatch by that time. Force majeure, government action and strikes, lock-outs and other events that lead to delivery being prevented or considerably delayed shall entitle us to appropriately extend the delivery time, including any necessary lead time, or to withdraw from the contract. The same shall apply to similar events affecting our sub-suppliers. The buyer can demand that we declare whether we will withdraw from the contract or deliver within a suitable period; if no declaration is forthcoming, he may withdraw from the contract himself.
If not otherwise specified or expressly agreed as a fixed price, orders shall be calculated at the daily price valid on the day of delivery. The applicable daily prices are posted on a noticeboard or made available on request and are consequently recorded on our order confirmations and, particularly in the case of ex warehouse deliveries without written confirmation, on our invoices. Deliveries of goods with a net value per order of over €200 in the vicinity of our locations (approx. 50 km) are free of charge. When the order value is below this amount, we will invoice you a freight charge of €12.50 per delivery. For deliveries further away from our locations (up to approx. 100 km) we deliver free of charge from a net goods value per order of €300. Below this value we will invoice you a freight charge of €15 per delivery. Delivery is free of charge within the entire mainland territory of the Federal Republic of Germany if the net value of goods is more than €450 per delivery. We are also happy to deliver smaller quantities further afield, but will invoice you a freight charge of €25 for this. If the goods are consigned to the buyer at the buyer’s request, then the risk of accidental loss or accidental perishing of the goods passes to the buyer when the goods are transferred to the transporter, even if the delivery was agreed to be free of charge, FOB or CIF.
Retention of title
Until the settlement of all receivables (including all balances from outstanding accounts) to which we are legally entitled from the buyer now or in the future, we shall be granted the following securities, which we shall release on request at our discretion, provided that their long-term value exceeds the existing receivables by more than 20%. The goods remain our property. The buyer is entitled to sell them in the proper course of business subject to retention of title. Pledging and assigning security is not permitted. Receivables (including all balances from outstanding accounts) resulting from the onward sale or any other legal grounds (including, but not limited to, receivables from a collection order for receivables from onward sale, insurance, illicit activity) with regard to the retained goods, are assigned to us in advance by the buyer to their full extent by way of security and without requiring a special agreement for a particular case. We revocably authorise the buyer to collect the receivables assigned to us in his name and for his account. To guarantee this assignment in advance, the buyer must invoice the onward sale of our goods separately to other goods.
In the case of access by third parties to the retained goods, the buyer shall indicate that the goods are our property and notify us immediately. If the retained goods are processed, compounded or mixed with other goods by the buyer, we are entitled to joint ownership of the new object proportional to the invoice value of the retained goods compared with the invoice value of the other goods used.
If our joint ownership expires due to compounding or mixing, then the buyer shall immediately transfer his ownership rights to the new asset or new object to us to the extent of the invoice value of the retained goods and shall keep it for us free of charge. The joint ownership rights resulting from this are classed as retained goods, to which this Paragraph 5 applies accordingly. If it becomes evident that our purchase price claim is at risk due to the buyer’s lack of performance, we shall be entitled to revoke the authorisation for onward sales and/or collection or disclose the assignment of the buyer’s entitlements against third parties from onward sale or any other legal grounds and request direct payment to us. If our purchase price claim is put at risk by the buyer’s lack of performance or by the buyer acting in violation of the contract, we shall be entitled under the provisions of § 323 BGB [German Civil Code] to withdraw from the contract or take back the retained goods. The buyer hereby gives his consent that the persons charged with collecting the goods for this purpose may enter the premises and the building where the objects are located. The buyer must at all times provide all the necessary information and documents so that we can recover the entitlements assigned in advance from the onward sale.
Defects, claims, compensation
Only the buyer is entitled to warranty and liability claims, which are non-assignable.
Complaints about the condition, quantity and correctness of the delivered goods must be notified to us immediately in writing or by telephone, at the latest within 24 hours of their receipt or, in the case of hidden defects, immediately upon their discovery. Later complaints of this type are excluded. The buyer undertakes to store these goods properly and to use them according to our instructions. Notices of defects that are justified and made in time shall be rectified by supplementary performance, assuming we are not entitled to deny supplementary performance according to statutory requirements. In the event that supplementary performance is denied, fails or is unacceptable, we shall be entitled to choose either withdrawal or mitigation.
If statutory regulations and/or these Terms oblige us to recompense for damages caused other than by intent or gross negligence, then we are liable (to a limited extent) according to the following: liability arises only where key contractual obligations are breached and is always limited to the typical, foreseeable damages on conclusion of the contract. This limitation does not apply in the event of injury to life, body and health. If the damages are covered and can be settled by an insurance policy taken out by the buyer for such a case (excluding fixed-benefit insurance), we are only liable for any commercial disadvantages incurred by the buyer, in particular higher insurance premiums or loss of interest until the claim is settled by the buyer’s insurance company. No liability is assumed for damages (except for injury to life, body or health) that were caused only slightly negligently by a defect in the purchase item. Our liability regardless of negligence, according to the German Product Liability Act, in the case of intentionally concealing a defect or taking over a procurement risk or a separate guarantee remains unaffected. In the case of a guarantee, we are only liable insofar as the guarantee is intended to safeguard the buyer against the damage in question. Within the scope of application of the CISG, the seller is not then obliged to pay compensation if it exonerates itself according to Art. 79 CISG or if it provides evidence that the in-house obstacle to performance was neither set by itself or an employee nor has not been culpably removed. In order to limit a manufacturer’s liability, the buyer undertakes to immediately provide us with all the information at his disposal that shows evidence of the existence of product defects (particularly customer complaints) and to fully support us without delay in the event of a product recall.
Unless otherwise agreed, invoices shall be paid net without any deductions by direct debit, including the statutory rate of VAT, within 10 days of the invoice date. Initial deliveries are only made against advance payment or cash on delivery. Unless otherwise stated, the invoice date is the same as the date that the goods are dispatched or collected. The buyer can only offset payment with an undisputed or legally established receivable or exercise a right of retention in this respect. If the buyer falls behind on payment, then we are entitled to claim the statutory rate of late payment interest (8 percentage points above base rate) and compensation for delay from this point in time. Until complete payment is made of due invoice amounts including accrued interest and costs, we are under no obligation to make further deliveries arising from ongoing contracts. In this case we can request cash payment for outstanding deliveries before goods are delivered. If we become aware of circumstances that put the buyer’s creditworthiness in doubt, particularly due to cheques being dishonoured or payments being stopped, we shall be entitled to make the whole remaining debt payable, even if we have accepted cheques. In this case we shall also be entitled to demand advance payment or security. Besides enforcing the retention of title, we shall also be entitled to withdraw from the contract or demand compensation instead of payment.
The buyer declares that he has been notified and gives his consent that all data relating to the buyer from the business relationship, including personal data under the terms of the Federal Data Protection Act, will be stored as part of our electronic data processing.
Place of performance, jurisdiction, severability
The place of performance for our services is the place of dispatch. German law shall apply to these Terms and the entire legal relationship. If one or more provisions of these General Terms and Conditions or a provision made as part of another agreement is or becomes ineffective, then the effectiveness of all other provisions or agreements shall not be affected.
In the event of any doubts regarding the interpretation of these General Terms and Conditions, the German text shall be authoritative.