1. Scope
(1) These Terms of Sale apply exclusively to entrepreneurs, legal entities under public law, and special funds under public law within the meaning of Sec. 310 Para. 1 of the German Civil Code (Bürgerliches Gesetzbuch – BGB). Any terms and conditions of the purchaser that are contrary to or deviate from our Terms of Sale are not recognized by us unless we have expressly agreed to them in writing.
(2) These Terms of Sale also apply to all future transactions with the purchaser if these are legal transactions of similar nature.
2. Offer and Entering into Contracts
If an order is to be considered an offer pursuant to Sec. 145 of the German Civil Code (BGB), we can accept it within two weeks.
3. Documents Provided
We reserve the property rights and copyrights to all documents supplied to the purchaser in connection with placing the order, such as calculations, drawings, etc. These documents must not be made available to third parties unless we have given the purchaser express written consent to do so. If we do not accept the purchaser’s offer within the time limit stated under Sec. 2, these documents must be returned to us immediately.
4. Prices and Payment
(1) Unless agreed otherwise in writing, our prices are ex works and do not include packaging and the respective amount of applicable value-added tax. Packaging costs are billed separately.
(2) Payment of the purchase price must be made exclusively to the account stated on the invoice. The deduction of any (cash) discount is only valid when expressly provided from us in writing.
(3) Invoices from the supplier are due and payable within 14 days of the invoice date in the absence of any other agreements. Interest on late payments will amount to 8% above the respective base interest rate per annum. We reserve the right to assert higher damages for default.
(4) Unless a fixed price has been set, we reserve the right to make reasonable price changes due to changed wage, material, and distribution costs for deliveries taking place three months or more from the time the contract was entered into.
5. Right to Set-off and Rights of Retention
The purchaser is only entitled to set-off if the purchaser’s counterclaims are undisputed or have been determined to be legally valid. The purchaser is only entitled to exercise the right of retention insofar as the purchaser’s counterclaim is based on the same contractual relationship.
6. Delivery Period
(1) The commencement of the delivery period specified by us is dependent on the purchaser’s fulfillment of its obligations in a timely and proper manner. We reserve the right to defense of non-performance of contract.
(2) If the purchaser is in default of acceptance or culpably violates other duties to cooperate, we are entitled to demand compensation for any loss incurred by us as a result, including any additional expenditures. We reserve the right to assert further claims. If the aforesaid conditions are present, the risk of accidental loss or accidental deterioration of the object of purchase transfers to the purchaser at the point in time at which the purchaser is in default of acceptance or debtor’s delay.
(3) In the case of delayed delivery not resulting from intent or gross negligence on our part, we are liable to pay a lump sum compensation for delay amounting to 3% of the delivery value for each full week of delay but not exceeding 15% of the delivery value.
(4) Any further legal claims and rights of the purchaser due to delayed delivery remain unaffected.
7. Transfer of Risk upon Shipment
If the goods are sent to the purchaser at the purchaser’s request, the risk of accidental loss or accidental deterioration of the goods transfers to the purchaser upon dispatch to the purchaser and no later than the point in time at which the respective goods leave the factory/warehouse. This applies irrespective of whether the dispatch of the goods is made from the place of performance and irrespective of who bears the freight charges.
8. Retention of Title
(1) We retain ownership of the delivered item until all receivables arising from the delivery contract have been paid in full. This also applies to all future deliveries even if we do not always expressly refer to this. We are entitled to take back the object of purchase if the purchaser acts in violation of the contract.
(2) The purchaser is obligated to handle the object of purchase with care until ownership has transferred to the purchaser. In particular, the purchaser is obliged to acquire insurance against theft, fire and water damage at their own expense sufficient for covering the object’s original value . Should maintenance and inspection work be necessary, the purchaser must have this performed timely and at their own expense. As long as ownership has not transferred, the purchaser must notify us immediately in writing if the delivered item is seized or subject to other interventions by third parties. If the third party is not able to reimburse us for the court costs and out-of-court costs of a legal action pursuant to Sec. 771 of the German Code of Civil Procedure (Zivilprozessordnung – ZPO), the purchaser is liable for any resulting loss incurred by us.
(3) The purchaser is entitled to resell the goods that are subject to retention of title within the ordinary course of business. The purchaser here and now assigns to us the receivables from the resale of the conditional goods in the amount of the final invoice total agreed with us (including added-value tax). This assignment applies regardless of whether the object of purchase was resold without or after further processing. The purchaser remains authorized to collect the receivables even after assignment. This does not affect our authority to collect the receivables ourselves. However, we will not collect the receivables as long as the purchaser meets its payment obligations from the collected proceeds, is not in default of payment, and, in particular, as long as no application for bankruptcy proceedings has been filed and as long as payment has not ceased.
(4) Any treatment, processing, or alteration of the object of purchase by the purchaser always takes place in our name and on our behalf. In this case, the purchaser’s expectant right to the object of purchase carries over to the remodeled item. If the object of purchase is processed together with other items not owned by us, we acquire co-ownership in the new item at the ratio of the objective value of our object of purchase to the other processed items at the time of processing. The same applies to cases of mixing. If mixing takes place in such a way that the item of the purchaser is to be regarded as the main item, it is deemed to be agreed that the purchaser proportionately assigns co-ownership to us and holds the thus created sole property or joint property in safe custody for us. To secure our claims against the purchaser, the purchaser also assigns to us any receivables from third parties that arise for the purchaser as a result of the incorporation of the conditional goods in real property; we hereby accept this assignment.
(5) We commit to release the securities we are entitled to upon the purchaser’s request if their value exceeds the receivables to be secured by more than 20%.
9. Warranty, Notice of Defects, Recourse, Manufacturer’s Recourse
(1) Any warranty rights of the purchaser are subject to the purchaser having properly fulfilled the obligation to inspect the goods upon receipt and submit complaints if applicable as required by Sec. 377 of the German Commercial Code (Handelsgesetzbuch – HGB).
(2) Claims for defects become time-barred 12 months from the time the goods supplied by us were delivered to the purchaser. This does not apply in cases where longer periods are prescribed by law in accordance with Sec. 438 Para. 1 No. 2 of the German Civil Code (BGB; regarding buildings and goods for buildings), Sec. 479 Para. 1 of the German Civil Code (BGB; regarding the right of recourse), and Sec. 634a Para. 1 of the German Civil Code (BGB; regarding construction defects). Our consent must be obtained prior to any return of goods.
(3) If, despite all care taken, the delivered goods exhibit a defect that already existed at the time of transfer of risk, we will, at our choice, either repair the goods or supply replacement goods, provided that the notice of defects was given in due time. We must always be given the opportunity to render subsequent performance within a reasonable time. The above provision does not affect the rights of recourse in any way.
(4) If subsequent performance is unsuccessful, the purchaser can – without prejudice to any possible claims for damages – withdraw from the contract or reduce the compensation.
(5) Claims for defects cannot be asserted in the case of only insignificant deviation from the agreed properties and condition, in the case of only insignificant impairment of usability, in the case of natural wear and tear, or in the case of damage arising after the transfer of risk as a result of incorrect or careless handling, excessive strain, unsuitable equipment, poor construction work, an unsuitable foundation, or due to special external influences that could not have been foreseen at the time the contract was formed. Likewise, if repair work or modifications are carried out improperly by the purchaser or a third party, claims for defects cannot be asserted for these or the resulting consequences.
(6) Claims on the part of the purchaser for expenditures necessary for the purpose of subsequent performance, particularly transport, travel, labor, and material costs, are excluded if these expenditures increase because the goods delivered by us were subsequently transported to a location other than the purchaser’s place of business, unless such transport is consistent with the goods’ intended use.
(7) The purchaser can only assert rights of recourse against us insofar as no agreements have been made between the purchaser and the purchaser’s buyer that go beyond the mandatory statutory rights relating to defects. Furthermore, as for the scope of the purchaser’s right of recourse against the supplier, Paragraph 6 applies accordingly.
10. Miscellaneous
(1) This contract and all legal relationships between the parties are subject to the law of the Federal Republic of Germany, under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) Place of performance and exclusive place of jurisdiction for all disputes arising from this contract is our place of business unless the order confirmation states otherwise.
(3) All agreements made between the parties for the purpose of execution of this contract are recorded in this contract in writing.
(4) If individual provisions of this contract are or become invalid or contain a loophole, this will not affect the remaining provisions. The parties commit to replace the invalid provision with a legally permissible provision which most closely corresponds to the economic purpose of the invalid provision or fills the loophole.
