§ 1 General – Scope
(1) Our terms and conditions of business apply exclusively; we do not recognise any terms and conditions of the customer that conflict with or deviate from our terms and conditions of business unless we have expressly agreed to their validity in writing. Our terms and conditions shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our terms and conditions.
(2) All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
(3) Our terms and conditions of business shall only apply to companies within the meaning of §310 (1) of the German Civil Code (BGB).
(4) If and insofar as we perform construction work, the contracting rules for construction work (Verdingungsordnung für Bauleistungen VOB Teil B), in the latest version in each case, shall apply exclusively and solely, which can be inspected at our premises at any time and which we will also send to the business partner on request.
§ 2 Offer – Offer Documents
(1) If the order is to be qualified as an offer pursuant to § 145 BGB, we may accept it within two weeks.
(2) We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. This shall also apply to such written documents which are designated as “confidential”. The customer must obtain our express written consent before passing them on to third parties.
§ 3 Prices – Terms of Payment
(1) Unless otherwise stated in the order confirmation, our prices shall apply “ex works”, excluding packaging; this shall be invoiced separately.
(2) Statutory value added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing.
(3) The deduction of a discount requires a special written agreement.
(4) Unless otherwise stated in the order confirmation, the net purchase price (without deduction) is due for payment within 30 days of the invoice date. The statutory rules concerning the consequences of default in payment shall apply.
§ 4 Delivery time
(1) The start of the delivery period stated by us presupposes the clarification of all technical questions.
(2) Compliance with our delivery obligation further presupposes the timely and proper fulfilment of the customer’s obligation. We reserve the right to plead non-performance of the contract.
(3) If the customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.
(4) If the conditions of paragraph (3) apply, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.
(5) We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a transaction for delivery by a fixed date within the meaning of Section 286 (2) No. 4 of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB). We shall also be liable in accordance with the statutory provisions if, as a consequence of a delay in delivery for which we are responsible, the customer is entitled to claim that his interest in the further performance of the contract has ceased to exist.
(6) We shall also be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; any fault on the part of our representatives or vicarious agents shall be attributed to us. If the delay in delivery is not due to an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(7) We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(8) In other respects, in the event of a delay in delivery, we shall be liable for each full week of delay within the framework of a lump-sum compensation for delay amounting to 3% of the value of the delivery, but not more than 15% of the value of the delivery.
(9) Further legal claims and rights of the customer remain reserved.
§ 5 Transfer of risk – packaging costs
(1) Unless otherwise stated in the order confirmation, delivery “ex works” is agreed.
(2) Separate agreements shall apply for the return of packaging.
(3) If the customer so desires, we shall cover the delivery by transport insurance; the customer shall bear the costs incurred in this respect.
§ 6 Liability for defects
(1) Claims for defects on the part of the customer presuppose that the customer has properly fulfilled its obligations to inspect and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
(2) Insofar as there is a defect in the purchased item, the customer shall be entitled to choose between subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. In the event of rectification of the defect, we shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the purchased item has been taken to a place other than the place of performance.
(3) If the supplementary performance fails, the customer shall be entitled to demand withdrawal or reduction at his discretion.
(4) We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.
(5) We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
(6) Insofar as the customer is entitled to claim compensation for damage instead of performance, our liability shall also be limited within the scope of subsection (3) to compensation for the foreseeable, typically occurring damage.
Alternative:
No provision regarding compensation for damage in lieu of performance, so that the exclusion in accordance with paragraph (8) then applies directly.
(7) Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
(8) Unless otherwise stipulated above, liability is excluded.
(9) The limitation period for claims for defects is twelve months, calculated from the transfer of risk.
(10) The limitation period in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected; it is five years, calculated from the delivery of the defective item.
§ 7 Joint and several liability
(1) Any further liability for damages than provided for in § 6 is excluded – regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for material damage pursuant to § 823 BGB.
claims for compensation for property damage pursuant to § 823 BGB.
(2) The limitation according to paragraph (1) shall also apply insofar as the customer demands compensation for useless expenditure instead of a claim for compensation for damage instead of performance.
(3) Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
§ 8 Retention of title
(1) We retain title to the purchased item until receipt of all payments under the delivery contract. In the event of conduct by the customer in breach of the contract, in particular in the event of default in payment, we shall be entitled to take back the object of sale. Our taking back of the object of sale shall constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to realise it; the proceeds of realisation shall be set off against the customer’s liabilities – less reasonable realisation costs.
(2) The customer is obliged to treat the object of sale with care; in particular, he is obliged to sufficiently insure it at his own expense against fire, water and theft damage at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
(3) In the event of seizures or other interventions by third parties, the customer must notify us in writing without delay so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
(4) The customer shall be entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim accruing to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing.
The customer remains authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have not been suspended. However, if this is the case, we may demand that the customer informs us of the assigned claim and its debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(5) The processing or transformation of the object of sale by the customer shall always be carried out for us. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other processed objects at the time of processing. In all other respects, the same shall apply to the object created by processing as to the object of sale delivered under reservation of title.
(6) If the object of sale is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other mixed objects at the time of mixing. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis.
The customer shall hold the sole ownership or co-ownership thus created in safe custody for us.
(7) The customer also assigns to us the claim to secure our claims against him which arise against a third party through the connection of the object of sale with a plot of land.
(8) We undertake to release the securities to which we are entitled at the customer’s request insofar as the realisable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released is ours.
§ 9 Place of jurisdiction – Place of performance
(1) If the customer is a merchant, our place of business shall be the place of jurisdiction; however, we shall also be entitled to sue the customer at the court of his place of residence.
(2) The law of the Federal Republic of Germany shall apply; the UN Convention on Contracts for the International Sale of Goods shall not apply.
(3) Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.
These GTC are valid as of 09.2006