§ 1. General
(1) All deliveries and other services are exclusively subject to the following General Terms and Conditions of Sale and Delivery; they only apply if the buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) Deviating, conflicting or supplementary general terms and conditions of the buyer shall only become part of the contract if and insofar as the seller has expressly agreed to their validity. This approval requirement applies in any case, for example, even if the seller makes the delivery to the buyer without reservation in knowledge of its terms and conditions.
(3) In individual cases, individual agreements with the buyer (including side agreements, additions and changes) have priority over these terms and conditions.
(4) References to the validity of legal provisions have only a clarifying meaning. Even without such clarification, these apply insofar as they are not amended or expressly excluded in these terms and conditions.
§ 2 Conclusion of contract
(1) Contract offers of the seller are non-binding. This also applies if the buyer has received catalogs, technical documentation or other product descriptions or documents - also in electronic form. The seller reserves the ownership and copyrights to such documents.
(2) The order of the goods by the buyer shall be considered a binding contract offer, which can be accepted by the seller by order confirmation or by delivery of the goods to the buyer.
(3) The documents underlying the offer or the order confirmation, such as illustrations, drawings, measurements and weights, are generally to be understood as approximate values unless they are expressly designated as binding.
§ 3 prices, terms of payment, default
(1) Unless otherwise agreed in individual cases, the prices are ex warehouse plus statutory value added tax and excluding packaging and other shipping and transport costs. The packaging will be charged at cost and will only be taken back if the seller is obliged to do so due to mandatory legal regulations. Any duties, fees, taxes and other public charges shall be borne by the buyer.
(2) If there are more than 4 months between the conclusion of the contract and the delivery, without being responsible for a delay in delivery of the seller, the seller may take the price into account, taking into account any increases in material, labor and other incidental costs which are to be borne by the seller , increase appropriately. If the purchase price increases by more than 15%, the buyer is entitled to withdraw from the contract.
(3) If the seller takes into account changes requested by the buyer, the buyer bears the resulting additional costs.
(4) The purchase price is due and payable within 14 days from receipt of the consideration and receipt of the invoice. The place of performance for the purchase price payment is the seller's domicile.
(5) At the end of the above payment period, the buyer is in default. During the delay, the purchase price is subject to interest at the applicable default interest rate; that is currently 9 percentage points above the respective base interest rate. In addition, the default damages fee in the amount of 40 euros. The seller reserves the right to assert further damages caused by the delay, taking into account the delay damages lump sum.
§ 4 offsetting, right of retention
Offsetting and the assertion of a right of retention on the part of the buyer are excluded, unless the counterclaim on which the set-off or the right of retention is based is undisputed or has been established as final and absolute. In the case of defects in the delivery, the counter-rights of the buyer remain unaffected, in particular according to § 8 of these GTC.
§ 5 Delivery time, delivery delay
(1) The indication of a delivery time is at best discretion when accepting the order. The delivery date is only binding if it is expressly designated as binding.
(2) The delivery period shall be reasonably extended if the buyer for its part delays or omits required or agreed cooperation. Also changes of the delivered goods caused by the buyer lead to a reasonable extension of the delivery time.
(3) If the seller does not comply with binding delivery deadlines for reasons for which he is not responsible, he will inform the buyer without delay and at the same time notify the anticipated new delivery deadline. If the service is not available within the new delivery period, the seller is entitled to withdraw from the contract in whole or in part; An already provided consideration of the buyer is to be refunded immediately. In particular, non-timely self-supply by suppliers is considered a case of non-availability of the service if neither the seller nor the supplier is at fault or the seller is not obliged to procure the goods in individual cases.
(4) The occurrence of the delay in delivery is governed by the statutory provisions. In any case, a reminder from the buyer is required. If the seller defaults in delivery, the buyer may demand a delay compensation flat rate, for each completed calendar week in the amount of 0.5% of the net price, but in total not more than 5% of the delivery value of the late delivered goods. The seller reserves the proof that the buyer either no or less damage than the lump sum.
(5) The rights of the buyer in accordance with § 9 of these Terms and Conditions and the statutory rights of the seller, in particular in the case of an exclusion of the obligation to perform, v.a. In case of impossibility or unreasonableness, services remain unaffected.
§ 6 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
(1) The delivery takes place from the warehouse of the seller, where the place of performance is. At the request and expense of the buyer, the goods will be shipped to another destination. Unless otherwise agreed, the seller is entitled to determine the type of shipment, in particular transport company, shipping route, packaging itself.
(2) The seller is entitled to partial deliveries to a reasonable extent.
(3) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. In the case of consignment purchase, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the forwarding agent, the carrier or other consignor upon delivery of the goods. If acceptance has been agreed, this is the relevant time for the transfer of risk. Incidentally, the statutory provisions for the contract of work agreement shall apply accordingly to an agreed acceptance. The transfer or acceptance is the same if the buyer is in default of acceptance.
(4) If the buyer is in default of acceptance, fails to cooperate or if the delivery is delayed for other reasons for which the buyer is responsible, the seller is entitled to demand compensation for any resulting damage including additional expenses (for example storage costs). In addition, the seller is entitled to further legal claims.
§ 7 Retention of title
(1) The seller reserves ownership of the purchased and delivered goods until full payment of all current and future claims under the purchase agreement and an ongoing business relationship.
(2) The buyer is not authorized to pledge the goods subject to retention of title to third parties or to assign them for security, however, is entitled to the further sale of the reserved goods in the orderly course of business. The buyer hereby assigns to the seller the security claims arising from this in relation to his business partners. The seller accepts the assignment. The buyer is revocably authorized to collect the claims assigned to the seller for his account in his own name.
(3) In case of breach of contract by the buyer, in particular in case of non-payment of the due purchase price, the seller is entitled to withdraw from the contract according to the statutory provisions and to demand the goods on the basis of the retention of title and rescission. If the buyer does not pay the purchase price, the seller may only assert these rights if he has unsuccessfully set a reasonable deadline for payment to the buyer or if such a deadline is dispensable according to the statutory provisions.
(4) The reservation of title extends to the full value of the products resulting from the processing, mixing or combination of the goods. If the property remains in the processing, mixing or combination with goods of third parties, the seller acquires co-ownership in proportion of the invoice value of the processed, mixed or associated goods. In addition, the same applies to the resulting product as to the goods delivered under reservation of title.
(5) If the value of all securities existing for the seller exceeds the existing claims by more than 10%, the seller shall, at the request of the buyer, release securities of the seller's choice.
§ 8 claims for defects
(1) The claims of the buyer for defects presuppose that he has complied with his statutory inspection and complaint obligations (§ 377 HGB). If there is a defect during the examination or later, the seller must inform the buyer without delay in writing. Immediately an ad is, if it takes place within two weeks, whereby the timely dispatch of the advertisement is enough for the deadline. Irrespective of this obligation to inspect and to give notice of defects, the buyer must notify us in writing of obvious defects within two weeks of delivery; here too, the timely dispatch of the advertisement is sufficient to meet the deadlines. If the buyer fails to properly examine and / or report defects, the seller's liability for the non-indicated defect is excluded.
(2) The seller may refuse the type of subsequent performance chosen by the buyer if it is only possible with disproportionate costs. If the buyer's decision on the form of supplementary performance remains, at the expiration of a 14-day period the right of choice shall pass to the seller. The seller can make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to retain a proportionate portion of the purchase price.
(3) The buyer shall give the seller the time and opportunity necessary for the supplementary performance owed, in particular to hand over the rejected goods for examination purposes. In the case of replacement, the buyer must return the defective item to the seller in accordance with the statutory provisions. (4) The seller bears the expenses necessary for the purpose of the examination and supplementary performance, in particular transport, travel, labor and material costs.
(5) The buyer has the right to remedy the defect himself and to demand compensation from the seller for the objectively necessary expenses only in urgent cases, such as endangering the operational safety or preventing disproportionate damage. The buyer must immediately inform the seller of such a self-assertion, if possible in advance. A right to self-assertion does not exist if the seller would be entitled according to the legal provisions to refuse an appropriate supplementary performance.
(6) In case of failure of the subsequent performance or the unsuccessful expiration of a reasonable period to be set by the Buyer for the supplementary performance or if the deadline is dispensable according to the legal provisions, the Buyer may, at his option, reduce the purchase price or withdraw from the contract. The right of withdrawal is excluded in case of a minor defect.
(7) Further claims of the buyer, as far as they do not result from a guarantee assumption, exist only if they result from these terms and conditions and are otherwise excluded.
(8) The claims for defects become statute-barred, as far as permissible, in one year from the delivery of the purchased item, otherwise in the statutory period of limitation. If acceptance has been agreed, the period of limitation begins with the acceptance.
§ 9 Other liability (restrictions)
(1) The liability of the seller for damages is limited to intent and gross negligence. In the case of ordinary negligence, the seller is only liable for damages resulting from injury to life, limb or health and for damages resulting from the violation of a material contractual obligation. An obligation is essential if the fulfillment of the contract enables the execution of the contract in the first place and on whose observance the contractual partner regularly trusts and can trust. In this case, the liability is limited to the compensation of the foreseeable, typically occurring damage.
(2) The liability limitations resulting from paragraph 1 do not apply if the seller has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods. This also applies to the claims of the buyer under the Product Liability Act.
(3) Due to a breach of duty that does not exist in a defect, the buyer can only resign or terminate if the seller is responsible for this.
§ 10 Choice of law, place of jurisdiction, severability clause
(1) The inclusion and interpretation of these General Terms and Conditions of Sale and Sale as well as the conclusion and interpretation of the legal transactions with the Buyer are governed solely by the law of the Federal Republic of Germany. The application of the international uniform law, in particular the UN sales law is excluded.
(2) The place of jurisdiction is the place of jurisdiction responsible for the place of business of the seller, insofar as the buyer is a merchant. The seller is also entitled to sue in a court which is responsible for the registered office or a branch of the buyer.
(3) The invalidity of individual provisions of this contract or its components shall not affect the validity of the remaining provisions. The contracting parties are bound, within reasonable limits and in good faith, to replace an ineffective provision by an effective provision which is in line with their commercial success, provided that this does not bring about a material change in the content of the contract; the same applies if a situation requiring regulation is not expressly regulated.
Status: March 2018