§ 1 Scope of application
(1) These General Terms and Conditions of Sale (hereinafter “our GTCS”) are an integral part of all our contract offers and contract acceptances and apply to all deliveries and other services provided by us. We do not accept the general terms and conditions of our customers (hereinafter “Buyer”), even if we do not expressly object to them or if we perform the service for the Buyer without reservation in the knowledge that the Buyer’s terms and conditions conflict with or deviate from our GTCS.
(2) Our GTCS shall also apply to all future transactions with the Buyer, even if we do not refer to the validity of our GTCS again.
(3) Our GTCS shall apply only to entrepreneurs within the meaning of section 14 of the German Civil Code („BGB“).
(4) Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall prevail over our GTCS. Such agreements must be made or confirmed in writing for evidence purposes. Subject to proof to the contrary, the contract or our written confirmation shall be authoritative for the conclusion and content of such agreements. With the exception of managing directors and authorised signatories, our employees are not entitled to make agreements that deviate from our GTCS.
(5) References to the applicability of statutory provisions are for clarification purposes only. In addition to our GTCS, the statutory provisions shall also apply without reference in this respect, insofar as they are not directly amended or expressly excluded in our GTCS.
(6) Insofar as observence of the written form is required in our GTCS, observence of the text form within the meaning of section 126b BGB shall also be sufficient. Statutory formal requirements remain unaffected.
§ 2 Offers, conclusion of contract, documents
(1) In case of doubt, cost estimates, price and delivery information as well as other “offers” on our part do not constitute legally binding offers, but are to be understood as an invitation to the Buyer to submit an offer. Orders placed by the Buyer are binding offers to us, to which the Buyer is bound in case of doubt for 14 days. The contract shall only be concluded when we confirm the Buyer’s order in writing, commence production or deliver the goods. If, by way of exception, our declaration is to be understood as a legally binding offer, this offer is subject to change, i.e. we are entitled to withdraw the offer at any time until it is accepted by the Buyer, unless the offer expressly states otherwise.
(2) Cost estimates, sketches, drawings, illustrations, requirement specifications, performance descriptions, data sheets and other documents which are not part of the scope of delivery shall remain our property. They must not be made accessible to third parties and must be returned upon request without undue delay.
§ 3 Prices, terms of payment
(1) Our prices are quoted in EURO plus statutory value added tax at the applicable rate. Unless otherwise agreed, prices are ex warehouse (EXW Incoterms 2020) plus costs for shipping, packaging and insurance, customs duties or other taxes. CIF and CFR prices are based on the freight rates and insurance premiums applicable at the time of conclusion of the contract. Any changes in these rates or premiums after conclusion of the contract shall be for the benefit or at the expense of the Buyer.
(2) The prices for our delivery are based on the circumstances existing at the time of the conclusion of the contract. In the event of unforeseeable cost increases beyond our control, e.g. due to increases in freight rates, transport costs, taxes, customs duties or other public charges, changes in
the price of raw materials or currency fluctuations, we shall be entitled to demand an adjustment of the prices. If the Buyer refuses a reasonable adjustment of the contract, we are also entitled to revoke the contract, subject to the other rights, in particular to enforce the adjustment of the
contract.
(3) Our invoices are due for payment immediately. Deductions such as discounts are not permitted insofar as not expressly agreed with the Buyer. Insofar as not expressly agreed otherwise, the Buyer shall be in default if the invoice amount is not paid within 14 days after receipt of the invoice. The date of receipt of the payment by us shall be decisive. An earlier occurrence of default in accordance with the statutory provisions, in particular by means of a warning notice, shall remain unaffected.
(4) Payments shall be made exclusively by bank transfer. We are entitled to issue invoices in electronic form.
(5) During default of payment, the Buyer shall be obliged to compensate default interest and lump-sum damages in accordance with the statutory provisions as minimum damages. The assertion of further damages is not excluded. With respect to merchants, our claim to the commercial due date interest (section 353 of the German Commercial Code, „HGB“) remains unaffected.
(6) The Buyer shall only be entitled to rights of set off and retention if his counterclaims have been finally and non-appealably established, are uncontested or have been accepted by us.
(7) We and each of the enterprises affiliated with us (within the meaning of section 15 of the German Stock Corporation Act, „AktG“) shall be entitled at any time to set off claims to which we or an enterprise affiliated with us (within the meaning of section 15 AktG) are entitled against the Buyer or an enterprise affiliated with him (within the meaning of section 15 AktG) against claims to which the Buyer or an enterprise affiliated with him (within the meaning of section 15 AktG) are entitled against us or an enterprise affiliated with us (within the meaning of section 15 AktG).
(8) We shall be entitled at any time without restriction to sell and/or assign our claims against the
Buyer to third parties.
(9) If, after the conclusion of the contract, circumstances become known which are likely to substantially reduce the Buyer’s creditworthiness and which jeopardise the claim to the purchase price (e.g. stopping of payments, application for the opening of insolvency proceedings, default with
payment obligations under other contracts within the scope of the business relationship with us), we shall be entitled to perform outstanding deliveries and services only against advance payment or security. Special agreements (including special discounts and discount agreements) shall be invalid in this case.
§ 4 Delivery periods/delay in delivery
(1) Binding performance periods or dates must be agreed in writing. An agreed delivery period shall commence at the earliest upon conclusion of the contract, but not before complete clarification of the technical and commercial details of the execution of the contract. The commencement of all periods applicable to us further requires the performance of all necessary acts of cooperation by the Buyer, in particular the transmission of all necessary information as well as compliance with the agreed terms of payment by the Buyer.
(2) Delivery shall be subject to timely and proper self-delivery. We shall not be obliged to procure the goods or the raw materials required for the manufacture of the goods elsewhere if we are not supplied by our supplier, despite having concluded a corresponding covering transaction, for reasons for which we are not responsible. In this case, we shall be entitled to revoke the contract without incurring any liability due to such circumstances.
(3) We shall not be liable for non-deliveries or delays in delivery if these are due to force majeure or any other impediment beyond our control and we could not reasonably be expected to take the impediment into consideration or to avoid or overcome the impediment or its consequences. This applies, for example, in cases of war, acts of terrorism, natural events, operational, transport and traffic disruptions, strikes, lawful lockouts, official orders, mass illnesses, epidemics and pandemics. In such cases, we will inform the Buyer of the reason for the impediment and its effects. If such an event makes it considerably more difficult or impossible for us to deliver or perform and the hindrance is not only of temporary duration, both parties shall be entitled to revoke the contract. In the event of obstacles of temporary duration, our delivery or service periods shall be extended or our delivery or service dates shall be postponed by the period of the hindrance plus an appropriate startup period. If the resulting delay exceeds a period of three months, both contracting parties shall be entitled to revoke the contract. If, as a result of the delay, one of the contracting parties cannot reasonably be expected to continue to adhere to the contract before the expiry of this period, the
respective contracting party shall be entitled to revoke the contract.
(4) In the event of a delay in delivery or impossibility, liability for damages exists only in accordance with § 9.
§ 5 Shipment and transfer of risk
(1) Insofar as not otherwise agreed, delivery shall be ex warehouse (EXW Incoterms 2020).
(2) Partial deliveries are permissible insofar as the Buyer can reasonably be expected to accept them. Invoices issued for partial deliveries are due for payment irrespective of the total delivery.
(3) If our employees or other third parties working for us assist the Buyer in loading and/or securing the goods for transport, this is done as a matter of courtesy and at the Buyer’s own risk. The persons act as vicarious agents of the Buyer. We do not assume any responsibility in this respect. The Buyer shall hold us harmless against all possible claims of third parties.
§ 6 General obligations of the Buyer to cooperate, default in acceptance, Buyer’s obligation to pay damages, assignment by the Buyer
(1) The Buyer shall be obliged to perform in due time all acts of cooperation which are contractually stipulated, necessary or owed in good faith.
(2) In the case of contracts for delivery on call, the Buyer shall be obliged to make the call within the agreed periods. If no period is stipulated, the call-off must be made within three months of notification of readiness for delivery. In the case of contracts involving the delivery of partial quantities on call, the Buyer is obliged, insofar as not expressly stipulated otherwise, to call uniform partial quantities on a monthly basis, and only one call per month is permissible. If the Buyer has been expressly granted a right to determine the call-off quantity, the call-off quantity shall be determined within the agreed periods.
(3) We are entitled to set the Buyer a reasonable period for the performance of an act of cooperation. After unsuccessful expiry of the period, we shall be entitled to revoke the contract.
(4) If the Buyer is in default with acceptance of the goods, for example if he does not make a call-off as agreed or if he does not cooperate or if the goods are dispatched later than the intended delivery date at the instigation of the Buyer or due to circumstances for which he is responsible, he shall be obliged to pay the purchase price for the goods. Furthermore, we shall be entitled to demand compensation for any damages and additional expenses incurred as a result. During the delay in acceptance, we are entitled to charge a lump sum for damages in the amount of 0.5% of the invoice amount for each month, but not more than 5% of the invoice value. The Buyer is entitled to prove to us that no or considerably lower damages have been incurred. We reserve the right to prove higher damages. Further rights, in particular the right to revoke the contract or to claim damages in lieu of performance, shall remain unaffected.
(5) If the Buyer owes damages in lieu of performance, we shall be entitled to demand lump-sum damages in the amount of 15% of the performance, insofar as the Buyer does not prove a lower damage. We reserve the assertion of a higher damage in accordance with the statutory provisions.
(6) The Buyer is not entitled to assign existing claims against us to third parties without our prior written consent. This does not apply to monetary claims.
§ 7 Retention of title
(1) Our deliveries are subject to retention of title. We retain title to the delivered goods until full payment of the purchase price as well as all other existing claims (even if they did not exist at the time of conclusion of the contract) against the Buyer arising from the business relationship. The ownership of the goods shall therefore automatically pass to the Buyer as soon as the purchase price has been paid and no further claims from the business relationship exist (retention of title in the form of a current account reservation).
(2) Any transformation or processing (hereinafter collectively “processing”) of our goods still subject to retention of title (hereinafter “reserved goods”) by the Buyer shall always be carried out for us as manufacturer within the meaning of section 950 BGB. In the event of a processing, we shall acquire direct ownership of the newly created item. If the reserved goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (invoice value incl. value added tax) to the other processed items at the time of processing. If the reserved goods are inseparably combined or intermixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including value added tax) to the other combined or intermixed items at the time of combination or intermixing. If the reserved goods are combined or intermixed in such a way that the Buyer’s item is to be regarded as the main item, the Buyer and we agree already now that the Buyer transfers co-ownership of this item to us on a pro rata basis (in proportion to the value of the starting materials). We accept this transfer. The regulations for reserved goods shall
apply accordingly to the products resulting from processing, intermixing or combining, insofar as they are our property. The Buyer is no longer entitled to process, combine, intermix or mingle the reserved goods (hereinafter “processing authorisation”) if he is in default of payment, if the opening of insolvency proceedings against his assets is applied for or if he is obliged to apply for insolvency proceedings against his assets.
(3) The Buyer is obliged, at his own expense, to treat the reserved goods with care, to store them carefully for us and to insure them adequately against the usual risks (e.g. theft, breakage, fire, water) at replacement value and to provide evidence of the conclusion and existence of the
insurance policy upon request. We are entitled to insure the reserved goods at his expense. We may at any time demand that the Buyer raises an inventory of the goods delivered by us at his respective storage location and marks the goods as our property. Insurance claims as well as claims against third parties due to damage, destruction, theft or loss of the goods are already now assigned to us by the Buyer by way of security. We hereby accept this assignment.
(4) The Buyer is entitled to sell the reserved goods, but only in the ordinary course of business. The Buyer is not entitled to dispose of the reserved goods in any other way, e.g. by way of security or attachment. All authorisations to dispose of reserved goods shall automatically expire if the Buyer is in default of payment, if the opening of insolvency proceedings against his assets is applied for or if he is obliged to apply for insolvency proceedings against his assets. In the event of a resale of the reserved goods on credit, the Buyer is obliged to sell the goods only against sufficient collateral (e.g. agreement of his own retention of title, etc.).
(5) The Buyer now already assigns to us by way of security the claims against third parties arising from the resale of the reserved goods in the amount of the share that corresponds to our ownership share. The assignment is furthermore limited to a maximum of the amount of the invoice value of our claims (including value added tax) to which we are entitled against the Buyer from the business relationship at the time of the resale, plus a security surcharge of 20%. The term “claims” also includes claims of the Buyer against insurers in connection with the resale of the goods, insofar as goods are exported to third countries, as well as claims of the Buyer against financial institutions in connection with the export of the delivery items.
(6) The Buyer is authorised to collect the claims assigned to us from the resale. The proceeds to which we are entitled shall be forwarded to us immediately upon receipt. Upon our request, the Buyer shall inform us of the names of the debtors of the assigned claim and notify them of the
assignment. We are authorised to inform the buyers of the assignment also in his name. The direct debit authorisation shall automatically expire if the Buyer is in default of payment, if the opening of insolvency proceedings against his assets is applied for or if he is obliged to apply for insolvency proceedings against his assets.
(7) Notwithstanding any automatic expiry, we shall be entitled to withdraw the resale and/or processing authorisation and/or the collection authorisation if the Buyer breaches his obligations towards us, in particular if he fails to properly fulfil his payment obligations arising from the business relationship, in particular if he is in default of payment, or if he breaches his obligations as a conditional buyer or if it becomes apparent after the conclusion of the contract that our payment claims arising from the business relationship with the Buyer are jeopardised by the Buyer’s lack of ability to pay. In the event that the collection authorisation expires, the Buyer shall provide us with the information on the claim required for collection and, if necessary, support us in the collection process.
(8) Furthermore, we are entitled to revoke the contract in accordance with the statutory provisions in the event of conduct in breach of contract on the part of the Buyer. Optionally, we are also entitled to merely demand the return of the goods, provided that the requirements for revocation are met. Such a mere demand for return does not constitute a declaration of revocation. However, we reserve the right of revocation. The same shall apply if we attach the reserved goods. The transport costs incurred for taking back the goods shall be borne by the Buyer. We shall be entitled to realise any reserved goods taken back by us. The proceeds of the realisation shall be offset against the amounts owed to us by the Buyer after we have deducted a reasonable amount for the costs of the realisation.
(9) The Buyer shall notify us of any third party seizure of the reserved goods after it becomes known without undue delay and shall provide us with all information and documents necessary for an intervention. The Buyer shall be liable for the costs incurred for the cancellation of the seizure, in particular by filing a third-party action opposing the execution of a judgment, insofar as they cannot be obtained from the creditor seeking the seizure.
(10) We undertake to release securities at the request of the Buyer if the value of our securities exceeds the claims to be secured by more than 20%. We shall be entitled to select the securities to be released.
§ 8 Warranty
(1) We warrant that our goods are free from defects at the time of delivery. We do not give any guarantees unless we have expressly designated them as such in writing using this term.
(2) In the case of all services rendered by us, the Buyer shall be obliged to inspect the delivery or service without undue delay and carefully for defects, including incorrect deliveries and deviations in quantity, and, if a defect becomes apparent, to notify us in writing without undue delay. In any case, the inspection must be carried out before a resale, processing, intermixing or combining of the delivery items. In addition, building materials and other goods intended for installation or other further processing must always be carefully inspected for defects immediately before installation or processing. Defects which are obvious at the time of delivery must be notified in writing as far as possible at the time of delivery, but at the latest within two working days upon delivery. Defects which would have been detectable in the course of a proper inspection within the meaning of section 377 HGB („obvious defects“) must be notified in writing without undue delay, at the latest within two weeks after delivery. Defects which were not detectable during a proper inspection („hidden defects“) shall be notified in writing within two working days after detection. If a hidden defect was already obvious at an earlier point in time during normal use, the notification period of two working days shall be calculated from the obviousness of the defect. The timely dispatch of the notice shall be sufficient to preserve the rights. If defects are not notified in accordance with the above provisions, the delivery shall be deemed to have been approved in accordance with the contract. Notes on delivery notes shall not be deemed to be notices of defects. Transport persons are not entitled to receive notices of defects. The burden of proof for the existence of a defect shall in any case lie with the Buyer.
(3) In the event of proven defects, we shall provide warranty by means of cure free of charge, at our choice by means of rectification or subsequent delivery. We are entitled to require the Buyer to return the defective goods to us in advance for the purpose of examining the complaint. The necessary transport costs for the return of the goods shall be borne by us in the event of justified complaints. If the Buyer has installed the goods in another object or attached them to another object in accordance with their type and their contractual purpose, we are entitled within the scope of the cure to undertake the removal of the defective object and the renewed installation of the defect-free object ourselves or to leave the removal and installation to the Buyer. In the latter case, we shall reimburse the Buyer for the necessary expenses. The Buyer shall set us a reasonable period within which we can carry out the removal of the goods on our own responsibility. Our right to refuse the
cure due to disproportionate costs shall remain unaffected. The cure shall in any case be disproportionate if the costs of the cure amount to more than 120% of the purchase price.
(4) The Buyer may only revoke the contract or reduce the purchase price if no attempt of cure is made within a reasonable period set for us or if the cure is impossible, refused, failed or unacceptable. The period for cure must be at least four weeks, provided that no justified interests of
the Buyer are opposed. In case of doubt, a failure of the cure shall only be assumed after the third failed attempt of cure. The Buyer shall not be entitled to revoke the contract due to insignificant defects. To claims for damages due to defects the special provisions in § 9 shall apply in addition to the statutory requirements.
(5) Because of defects the Buyer may only withhold payments to an extent that is reasonable in relation to the defects that have occurred.
(6) The statutory provisions on the Buyer’s recourse pursuant to sections 445a, 445b BGB shall apply with the following provisos: Prior to cure, the Buyer shall inform us without undue delay and give us the opportunity to make the subsequent delivery or rectification.
(7) The limitation period for claims due to defects is to be calculated according to § 10.
§ 9 Rights of revocation and claims for damages of the Buyer
(1) To the right to revoke the contract the statutory provisions shall apply with the proviso that the Buyer may only revoke the contract due to a breach of duty not consisting of a defect if we are responsible for the breach of duty.
(2) In principle, we shall only be liable for damages, insofar as the other prerequisites for a claim are fulfilled, if we can be charged with intent or gross negligence. In the case of slight negligence, we shall be liable in the event of a breach of an obligation the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the Buyer may regularly rely (so-called „Kardinalpflicht“). In all other respects, liability for damages of any kind, regardless of the basis of the claim, including liability for culpa in contrahendo, is excluded.
(3) If we are liable for slight negligence, our liability shall be limited to the damage foreseeable at the time of conclusion of the contract and typical for the contract.
(4) For damages caused by delay, we shall be liable to a maximum of 5% of the value of the delayed performance.
(5) The above exclusions and limitations of liability do not apply insofar as we are liable for intent or gross negligence, if we have assumed a guarantee, for damages that are to be compensated under the Product Liability Act, as well as for damages to life, body or health.
(6) The above exclusions and limitations of liability shall also apply in favour of our employees and other vicarious agents whose services we use for the performance of the contract.
§ 10 Limitation
(1) The limitation period for claims due to defects is one year from the date of delivery.
(2) Other contractual claims of the Buyer due to breaches of duty are subject to a limitation period of one year. This does not apply to the Buyer’s right to rescind the contract due to a breach of duty for which we are responsible and which is not due to a defect.
(3) By way of derogation, the statutory limitation periods shall apply to the following claims of the Buyer:
– Claims for damages arising from product liability, for damages arising from injury to life, body or health or from an essential contractual obligation as well as for other damages based on an intentional or grossly negligent breach of duty by us or our vicarious agents,
– claims under a right of recourse pursuant to sections 445a, 445b BGB,
– claims due to fraudulent concealment of a defect and due to a guarantee and
– claims pursuant to section 438 para. 1 no. 1 and no. 2 BGB.
(4) Our claims against the Buyer shall become statute-barred in accordance with the statutory provisions.
§ 11 Choice of law, place of performance and jurisdiction
(1) The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(2) The place of performance is the registered office of the seller.
(3) All disputes arising from a contract concluded between the parties or concerning its validity shall be finally settled in accordance with the Arbitration Rules of the Bremen Chamber of Commerce, as amended, to the exclusion of the ordinary courts of law. If the Buyer is in default of payment and if objections to the payment claim have not been raised, we shall be entitled to bring the matter before the ordinary court.
(4) Should individual provisions of the contract, including these GTCS, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the wholly or partially invalid provision shall be replaced by a provision whose economic effect comes as close as possible to that of the invalid provision.
Status of the 03rd of June, 2022