I. Scope of application
The following terms of sale apply to all contracts concluded between the buyer and us for the delivery of goods. They also apply to all future business relations, even if they are not expressly agreed again. Deviating conditions of the buyer which we do not expressly recognise are not binding for us, even if we do not expressly object to them. The following terms and conditions of sale shall also apply if we execute the buyer's order without reservation in the knowledge of conflicting or deviating conditions of the buyer.
All agreements made between the buyer and us for the execution of the sales contracts are set down in writing in the contracts.
II. Offer and conclusion of contract
- We can accept an order of the buyer, which is to be qualified as an offer to conclude a sales contract, within two weeks by sending an order confirmation or by sending the ordered products within the same period.
- Our offers are subject to change and non-binding, unless we have expressly designated them as binding.
- We reserve our property rights, copyrights and other protective rights to all illustrations, calculations, drawings and other documents. The buyer may only pass these on to third parties with our written consent, regardless of whether we have marked them as confidential.
III. Conditions of payment
- Our prices are ex works without packaging, unless otherwise specified in the order confirmation. Our prices do not include the statutory value added tax. We will show this separately in the invoice at the statutory rate on the day of invoicing.
A cash discount deduction is only permissible in the case of a special written agreement between us and the buyer. The purchase price is due for payment net (without deduction) within 60 days, unless a different payment term is stated in the order confirmation. A payment is only considered to have been made when we can dispose of the amount. In the case of payments by cheque, payment is only deemed to have been made when the cheque is cashed.Gerät der Käufer mit einer Zahlung in Verzug, gelten die gesetzlichen Regelungen.
- Even if notices of defects or counterclaims are asserted, the buyer is only entitled to offsetting if the counterclaims have been legally established, acknowledged by us or are undisputed. The buyer is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
IV. Delivery and service time
- Delivery dates or deadlines that have not been expressly agreed as binding are exclusively non-binding information. The delivery time stated by us shall not commence until the technical issues have been clarified. Likewise, the buyer must fulfil all his obligations properly and in good time.
If the underlying purchase contract is a transaction for delivery by a fixed date within the meaning of § 286 para. 2 no. 4 BGB or § 376 HGB, we shall be liable in accordance with the statutory provisions. The same applies if the buyer is entitled to claim the discontinuation of his interest in the further fulfilment of the contract as a result of a delay in delivery for which we are responsible. In this case, our liability is limited to the foreseeable, typically occurring damage if the delay in delivery is not due to an intentional breach of contract for which we are responsible, whereby any fault on the part of our representatives or vicarious agents is attributable to us.
Likewise, we shall be liable to the buyer in the event of a delay in delivery in accordance with the statutory provisions if this delay is due to an intentional or grossly negligent breach of contract for which we are responsible, whereby any fault on the part of our representatives or vicarious agents shall be attributed to us. Our liability is limited to the foreseeable, typically occurring damage if the delay in delivery is not due to an intentional breach of contract for which we are responsible.
- In the event that a delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation, whereby any fault on the part of our representatives or vicarious agents is attributable to us, we shall be liable in accordance with the statutory provisions with the proviso that in this case the liability for damages is limited to the foreseeable, typically occurring damage.
- Otherwise, in the event of a delay in delivery for which we are responsible, the buyer can claim lump-sum compensation amounting to 3% of the delivery value for each full week of delay, but not more than 15% of the delivery value.
- Any further liability for a delay in delivery for which we are responsible is excluded. The further legal claims and rights of the buyer, which he is entitled to in addition to the claim for damages due to a delay in delivery for which we are responsible, remain unaffected.
- We are entitled to make partial deliveries and render partial services at any time, provided this is reasonable for the customer.
- If the buyer is in default of acceptance, we are entitled to demand compensation for the resulting damage and any additional expenses. The same applies if the buyer culpably violates his obligations to cooperate. Upon the occurrence of default of acceptance or debtor's delay, the risk of accidental deterioration and accidental loss shall pass to the buyer.
V. Transfer of risk - dispatch/packaging
- Loading and dispatch are carried out uninsured at the risk of the buyer. We will make every effort to take into account the wishes and interests of the buyer with regard to the type of shipment and the shipping route; any additional costs incurred as a result of this - even if carriage paid delivery has been agreed - will be borne by the buyer.
- We do not take back transport packaging and all other packaging in accordance with the German Packaging Ordinance, with the exception of pallets. The buyer must arrange for the disposal of the packaging at his own expense.
- If dispatch is delayed at the request of or through the fault of the buyer, we will store the goods at the buyer's expense and risk. In this case, the notification of readiness for dispatch is equivalent to dispatch.
- At the request and expense of the buyer, we will insure the delivery with transport insurance.
- Claims for defects on the part of the buyer shall only exist if the buyer has duly complied with his duties of inspection and notification of defects in accordance with § 377 HGB.
- In the event of justified notices of defect, we are obliged to provide subsequent performance, excluding the rights of the buyer to withdraw from the contract or to reduce the purchase price (reduction), unless we are entitled to refuse subsequent performance on the basis of the statutory regulations. The buyer shall grant us a reasonable period of time for subsequent performance. Subsequent performance can be effected at the buyer's option by eliminating the defect (rectification of defects) or by delivering new goods. In the event of rectification of the defect, we shall bear the necessary expenses insofar as these are not increased because the object of the contract is located at a place other than the place of performance. If the subsequent performance has failed, the buyer may, at his discretion, demand a reduction of the purchase price (abatement) or declare his withdrawal from the contract. The rectification of defects shall be deemed to have failed after the second unsuccessful attempt, unless further attempts at rectification of defects are appropriate and reasonable for the buyer due to the subject matter of the contract. Claims for damages on the following conditions due to the defect can only be asserted by the buyer when the subsequent performance has failed. The right of the buyer to assert further claims for damages under the following conditions remains unaffected.
- The buyer's warranty claims expire by limitation one year after delivery of the goods to the buyer, unless we have fraudulently concealed the defect; in this case the statutory provisions apply. Our obligations under Section VI No. 4 and Section VI No. 5 remain unaffected.
- In accordance with the statutory provisions, we shall be obliged to take back the new goods or to reduce the purchase price even without the otherwise necessary setting of a deadline if the buyer's customer, as the consumer of the new movable item sold (purchase of consumer goods), was able to demand that the buyer take back the goods or reduce the purchase price due to the defect of these goods or the buyer is confronted with a similar resulting right of recourse. Furthermore, we are obliged to reimburse the buyer's expenses, in particular transport, travel, labour and material costs, which the buyer had to bear in relation to the end consumer within the scope of subsequent performance due to a defect in the goods existing at the time of the transfer of risk from us to the buyer. The claim is excluded if the buyer has not properly fulfilled his duties of inspection and notification of defects according to § 377 HGB (German Commercial Code).
- The obligation pursuant to Section VI, Item 4 is excluded if the defect is due to advertising statements or other contractual agreements which do not originate from us, or if the buyer has given a special guarantee to the end consumer. The obligation is also excluded if the buyer himself was not obliged to exercise the warranty rights towards the end consumer on the basis of the statutory regulations or if he has not made this complaint in respect of a claim made against him. This shall also apply if the buyer has assumed warranties towards the end consumer which exceed the legal requirements.
- Irrespective of the following limitations of liability, we are liable in accordance with the statutory provisions for damage to life, body and health resulting from a negligent or intentional breach of duty by us, our legal representatives or our vicarious agents, as well as for damage covered by liability under the Product Liability Act. We shall be liable in accordance with the statutory provisions for damages which are not covered by sentence 1 and which are based on intentional or grossly negligent breach of contract as well as fraudulent intent by us, our legal representatives or our vicarious agents. In this case, however, the liability for damages is limited to the foreseeable, typically occurring damage, unless we, our legal representatives or our vicarious agents have acted intentionally. To the extent that we have given a guarantee of quality and/or durability with regard to the goods or parts thereof, we shall also be liable within the scope of this guarantee. However, we shall only be liable for damage which is based on the absence of the guaranteed quality or durability but which does not directly affect the goods if the risk of such damage is obviously covered by the guarantee of quality and durability.
- We are also liable for damages caused by simple negligent breach of such contractual obligations, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the buyer regularly relies and may rely. However, we shall only be liable insofar as the damages are typically associated with the contract and are foreseeable.
- Any further liability is excluded irrespective of the legal nature of the asserted claim; this applies in particular to tortious claims or claims for compensation for futile expenditure instead of performance; this shall not affect our liability pursuant to Section IV No. 2 to Section IV No. 5 of this contract. Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives and vicarious agents.
- The buyer's claims for damages due to a defect expire by limitation one year after delivery of the goods. This shall not apply in the case of injury to life, body or health caused by us, our legal representatives or our vicarious agents, or if we, our legal representatives have acted with intent or gross negligence, or if our simple vicarious agents have acted with intent.
VII. Reservation of title
- The delivered goods (goods subject to retention of title) remain our property until all claims, including all balance claims from current account, to which we are entitled against the buyer now or in the future, have been fulfilled. In the event that the buyer acts in breach of contract, e.g. payment arrears, we shall be entitled to take back the goods subject to retention of title after having set a reasonable deadline. If we take back the goods subject to retention of title, this constitutes a withdrawal from the contract. If we seize the goods subject to retention of title, this is a withdrawal from the contract. We are entitled to use the reserved goods after taking them back. After deduction of a reasonable amount for the costs of realisation, the proceeds of realisation shall be offset against the amounts owed to us by the buyer.
- The buyer must treat the goods subject to retention of title with care and insure them adequately at his own expense against fire, water and theft damage at replacement value.
- The buyer is entitled to sell and/or use the goods subject to retention of title properly in business transactions as long as he is not in default of payment. Pledging or transfer by way of security is not permitted. By way of security, the buyer hereby assigns to us in full all claims arising from resale or on any other legal grounds (insurance, tort) in respect of the goods subject to retention of title (including all balance claims from current account); we hereby accept the assignment. We revocably authorise the buyer to collect the claims assigned to us for his account in his own name. The direct debit authorisation can be revoked at any time if the buyer does not properly fulfil his payment obligations. The buyer is also not authorised to assign this claim for the purpose of collecting the claim by way of factoring, unless the factor's obligation is simultaneously established to effect the consideration in the amount of the claims directly to us for as long as we still have claims against the buyer.
- In the event of access by third parties to the reserved goods, in particular seizures, the buyer will point out our ownership and inform us immediately so that we can enforce our ownership rights. Insofar as the third party is not in a position to reimburse us for the judicial or extrajudicial costs incurred in this connection, the buyer shall be liable for them.
- We are obliged to release the securities to which we are entitled to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%.
VIII. Place of performance, place of jurisdiction, applicable law
- The place of performance and jurisdiction for deliveries and payments (including actions on cheques and bills of exchange) and all disputes arising between us and the buyer from the purchase contracts concluded between us and the buyer is our registered office. However, we are also entitled to sue the buyer at his place of residence and/or business.
- The relations between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany. The application of the UN Sales Convention is excluded.