Terms and Conditions
§ 1 General, scope of application
(1) Our General terms and conditions of sale and delivery (“General terms and conditions of sale and delivery”) apply to contracts that mainly involve the delivery of movable objects (“goods”) to buyers whose main business address is in Germany. Additional obligations assumed do not affect the validity of these General terms and conditions of sale and delivery.
(2) Our General terms and conditions of sale and delivery apply exclusively; we do not recognise any conditions of the buyer that contradict or deviate from our General terms and conditions of sale and delivery or the statutory provisions, unless we have expressly agreed to their validity in writing. Our General terms and conditions of sale and delivery also apply if we unconditionally accept the performance of the buyer or provide our services with knowledge of the buyer’s general terms and conditions that conflict with or deviate from our General terms and conditions of sale and delivery.
(3) Our General terms and conditions of sale and delivery only apply if the buyer is an entrepreneur (§ 14 German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
(4) References to the validity of the statutory regulations are only for purposes of clarification. Even without such a clarification, the statutory provisions apply, unless they are directly changed or expressly excluded in these General terms and conditions of sale and delivery.
§ 2 Offer, conclusion of contract and content of the contract
(1) Our offers are subject to change and are non-binding, unless they are expressly marked as binding or contain a specific acceptance period.
(2) The order of the goods by the buyer is considered a binding contract offer. Unless otherwise stated in the order, we can accept this contract offer within fourteen (14) days of receipt.
(3) The acceptance of the order of the buyer by us can be declared either in writing (e.g. by order confirmation) or by the delivery of the goods to the buyer.
(4) The buyer is obliged to inform us in writing before a contract is concluded if (a) the goods to be delivered are not intended to be exclusively suitable for normal use or the buyer assumes a certain suitability for use, (b) the goods are to be used under unusual conditions or will be exposed to special stresses, (c) the goods are to be used under conditions that pose a particular health or safety risk, or (d) the goods are to be used outside Germany or are to be delivered to customers of the buyer located outside Germany.
(5) Our information on the goods (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and images) are only approximate, unless the usability for the contractually intended purpose requires an exact match. They represent neither quality nor durability guarantees of the goods to be delivered by us.
(6) Deviations customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts, are permissible, provided they do not impair the usability for the contractually intended purpose.
(7) All agreements that are made between us and the buyer for the purpose of executing this contract at the time the contract is concluded are set out in writing in the contract and these General terms and conditions of sale and delivery.
(8) Unless our order confirmation expressly states otherwise, no declaration of acceptance by the buyer is required. If such a declaration of acceptance is required after our order confirmation, the only consequence of this is that the obligation to examine pursuant to § 377 of the German Commercial Code does not begin until the first joint acceptance date (see § 5 para. 4 of these General terms and conditions of sale and delivery). Further legal effects are not associated with any agreed acceptance declaration, in particular it has no effects on the transfer of risk, the timeliness of the delivery or the due date of the purchase price payment claim. The acceptance obligation pursuant to § 433, para. 2 of the German Civil Code (BGB) remains unaffected.
(9) We reserve all proprietary rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to written documents that are designated as “confidential”. Before passing them on to third parties, the buyer requires our express, written consent.
§ 3 Delivery, delivery period, withdrawal in the event of default, compensation in the event of default
(1) Unless otherwise agreed, delivery FCA Incoterms 2010 will be made to the delivery address specified in our order confirmation, or, if no delivery address is specified in the order confirmation, FCA 32429 Minden Incoterms 2010. The organisation of the transport or the insurance of the goods from the above-mentioned place of delivery is not owed by us, but is the responsibility of the buyer. Although we are not obliged to do so, we are entitled to conclude the freight contract to the destination at the risk and expense of the buyer under the conditions customary in Germany. Even in these cases, however, there is no obligation to take out transport insurance for the benefit of the buyer.
(2) The transfer of risk takes place with the delivery. This applies even if we conclude the freight contract to the destination at the risk and expense of the buyer pursuant to § 3 para. 1 sentence 3 of these General terms and conditions of sale.
(3) The start of the delivery time or delivery period specified by us assumes that all technical questions have been clarified. Compliance with our delivery obligation also requires the timely and proper fulfilment of all obligations of the buyer. The objection of the non-performance of the contract remains reserved.
(4) Agreed delivery periods do not constitute a firm business transaction.
(5) We are entitled to partial deliveries and partial services within the agreed delivery periods or up to the agreed delivery date, provided this is reasonable for the buyer.
(6) If the buyer wants changes to the goods after the conclusion of the contract, this will lead to an extension of the delivery period, provided we agree to these changes, which we are not obliged to do. Depending on the order situation, the period of extension can be longer than would be necessary for the mere implementation of the change requests.
(7) If we cannot meet binding delivery periods or delivery dates for reasons for which we are not responsible (unavailability of the service), we will inform the buyer of this immediately and at the same time notify the expected new delivery period or the new delivery date. If the service is also not available within the new delivery period or on the new delivery date for reasons for which we are not responsible, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already provided by the buyer. A case of non-availability of the service in this sense counts in particular if our supplier does not deliver on time if we have concluded a congruent hedging transaction or if neither we nor our supplier are at fault.
(8) If the buyer is in default of acceptance or if it culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage we incur in this respect, including any additional expenses. The right to the enforcement of additional claims is reserved.
(9) The buyer is only entitled to withdraw from the contract due to late delivery and/or non-delivery if we are in default with the fulfilment of the main obligations incumbent on us or if we have otherwise significantly violated obligations established by the contract and we are responsible for the default or breach of duty. In order to establish the fact of default, a written request to us to perform our service within a reasonable period is always required, without waiving other statutory provisions, even if the time of performance is determined by the calendar. In addition, the statutory provisions apply to the occurrence of default.
(10) In the event of a delay in delivery, our liability for each full week of default is limited to 0.5% of the agreed net price of the goods not delivered or delivered late, but to a maximum of 5% of the net price of the goods not delivered or delivered late. This does not affect claims due to fraudulent, intentional and grossly negligent breach of contract as well as claims due to injury to life, limb and health as well as in the case of liability under the Product Liability Act.
§ 4 Prices, terms of payment and default in payment
(1) Unless otherwise stated in the order confirmation, our prices FCA 32429 Minden Incoterms 2010 apply, excluding packaging. The packaging will be invoiced separately.
(2) The buyer is obliged to pay the full purchase price without any discount on the date specified in the written order confirmation or, if such is not specified, upon issuing the invoice to the account specified by us free of charges and fees. The receipt of payment on our account is decisive for the timeliness of the payment. The agreed price covers the services incumbent on us, excluding packaging. The statutory sales tax is calculated separately and must be paid by the buyer additionally.
(3) The statutory regulations apply to default in payment. The applicable statutory default interest rate is to be charged on the purchase price during the default period. We reserve the right to claim further damage caused by default. With respect to merchants, our claim to the commercial due date interest pursuant to § 353 German Commercial Code (HGB) remains unaffected.
(4) The buyer is only entitled to set-off and retention rights if its counterclaims have been legally established, are undisputed or recognised by us or are based on the same contractual relationship.
(5) If the buyer does not pay due invoices, exceeds the agreed payment terms or if its financial situation deteriorates after the conclusion of the contract or we receive information after the conclusion of the contract that calls into question the solvency or creditworthiness of the buyer, we are entitled to (a) make the entire remaining debt of the buyer due and, changing the agreements made, to demand advance payment or security deposit, (b) to demand immediate payment of all our claims based on the same legal relationship after delivery has been made, and (c) to raise the objection of uncertainty pursuant to § 321 German Civil Code (BGB).
§ 5 The rights of the buyer in the event of defects
(1) The statutory provisions apply to the rights of the buyer in the event of material defects and defects of title (including incorrect and short deliveries as well as improper assembly and/or inadequate assembly instructions), unless otherwise specified below. In all cases, the special statutory provisions pursuant to §§ 478, 479 German Civil Code (BGB) remain unaffected for the final delivery of the goods to a consumer.
(2) The goods are defective if they noticeably deviate from the specifications stated in the order confirmation at the time of the transfer of risk. If a declaration of acceptance by the buyer is required in accordance with § 2, para. 8 of these General terms and conditions of sale and delivery, in deviation from § 5, para. 2, sentence 1, the time of the transfer of risk is not to be taken into account, but rather the time of the first declaration of acceptance. If no specifications are mentioned in the order confirmation, the goods are defective if they deviate from the properties customary in Germany. The goods only show defects of title if they are not free of enforceable rights in Germany at the time of the transfer of risk.
(3) Claims for defects on the part of the buyer presuppose that the buyer has properly complied with its inspection and complaint obligations pursuant to
§ 377 of the German Commercial Code (HGB), taking into account the provisions contained in these General terms and conditions of sale and delivery.
(4) The buyer is obliged to examine the goods immediately after delivery. If a declaration of acceptance by the buyer is required pursuant to § 2 para. 8 of these General terms and conditions of sale and delivery, the obligation to examine begins with the first joint acceptance date. If the inspection reveals that the goods are defective, the buyer must inform us of the exact complaints immediately, but no later than seven (7) calendar days after delivery of the goods – or, if a declaration of acceptance by the buyer in accordance with § 2 para. 8 of these General terms and conditions of sale and delivery is required, this is to be reported in writing within seven (7) calendar days after the first joint acceptance date.. Hidden defects are to be reported in writing immediately after their discovery.
(5) The notification must be sent directly to us in writing. It must be drafted so precisely that we can initiate remedial measures without further inquiries to the buyer and secure recourse claims against our sub-suppliers. Otherwise, the complaint must comply with the statutory provisions. Our employees are not entitled to accept notifications of defects or to issue declarations of warranty outside of our business premises.
(6) If there is a defect in the goods that has been reported in good time, we are entitled, at our discretion, to supplementary performance in the form of a defect removal or to the delivery of a new, defect-free item. The supplementary performance can take place at our premises or at the place where the goods are used. We do not have to assume expenses that arise because the goods are moved to a location other than the branch of the buyer, unless the buyer has informed us in writing in its order before the conclusion of the contract that the goods will be at a different location than its place of business and we have expressly consented to this.
(7) If the supplementary performance fails, the buyer is entitled to withdraw from the contract or to demand a reduction in price after setting a deadline with a threat of rejection and in compliance with the statutory provisions. Remedial work is considered to have failed after the third unsuccessful attempt, in each case with reference to the specific individual defect, unless something else arises from the type of defect or other circumstances.
(8) Insofar as the buyer has suffered damage due to a lack of goods delivered by us or has made futile expenses, our liability for this is based on
§ 6 of these General terms and conditions of sale and delivery.
(9) Subject to §§ 478, 479 German Civil Code (BGB) and subject to the usual use of the delivered goods for a building and the cause of a building defect, any claims of the buyer due to the delivery of new defective goods shall become statute-barred one (1) year after the start of the statutory limitation period pursuant to § 438 para. 2 German Civil Code (BGB) and because of used defective goods six (6) months after the start of the statutory limitation period. Claims for fraudulent, intentional and grossly negligent breach of contract as well as claims for injury to life, body and health remain unaffected. Replacement delivery or subsequent improvement does not lead to new limitation periods.
(10) Regardless of furtherlegal regulations, the suspension of the statute of limitations also ends if the obstructive negotiations are not continued for four (4) weeks on the matter. A new beginning of a suspension of the statute of limitations of claims of the buyer requires in each case our express, written confirmation.
§ 6 Liability for damage and expenses
(1) Our liability for damage or futile expenses, for whatever legal reason, only occurs if the damage or the futile expenses
a) are caused by a culpable breach of an obligation, the fulfilment of which makes the proper execution of the contract possible in the first place and compliance with which the buyer may regularly rely (essential contractual obligation) or
b) is due to a grossly negligent or wilful breach of duty.
(2) If we are liable pursuant to § 6 para. 1 a) of these General terms and conditions of sale for the breach of an essential contractual obligation, our liability for damages is limited to the foreseeable, typically occurring damage or to € 1 million per case of damage, whichever is the lower. However, even in this case we are not liable for lost profit. § 3 para. 10 of these General terms and conditions of sale applies to damage caused by delay.
(3) The limitations of liability mentioned in § 6 para. 1 to para. 2 of these General terms and conditions of sale do not apply to liability (a) under the Product Liability Act, (b) due to the assumption of a guarantee for the quality of the goods, (c) due to fraudulent concealment a defect, (d) for damage resulting from culpable injury to life, limb or health and (e) for damage based on a grossly negligent or wilful breach of duty.
(4) With the exception of liability (a) under the Product Liability Act, (b) due to the assumption of a guarantee for the quality of the goods, (c) due to fraudulent concealment of a defect, (d) for damage resulting from culpable injury to life, limb or the health as well as (e) for damages that are based on a grossly negligent or an intentional breach of duty, liability for damages from the delivery of used goods is excluded.
(5) The obligation of the buyer to reduce damage pursuant to § 254 of the German Civil Code (BGB) remains unaffected. Any agreement between the buyer and its customers that increases the legal liability of the buyer to its disadvantage constitutes a breach of this duty to mitigate damage and, if the legal liability of the buyer has been made more strict to its disadvantage, leads to the exclusion of a claim for compensation against us.
(6) Due to the breach of the contractual and/or pre-contractual obligations incumbent on the buyer, we are exclusively obliged to pay damages that are in accordance with the provisions of these sales conditions. Any recourse to competing claims, e.g. negligence when concluding a contract pursuant to § 311 para. 3 of the German Civil Code, positive breach of contract pursuant to § 280 of the German Civil Code or due to tortious claims pursuant to § 823 of the German Civil Code (BGB) is excluded. Likewise, it is excluded to make personal claims against our institutions, employees, workers, representatives and/or vicarious agents due to the breach of contractual obligations incumbent on us.
(7) The above provisions also apply to the claims of the buyer for reimbursement of expenses.
§ 7 Retention of title
(1) We reserve title to the sold goods until all of our current and future claims from the contract and an ongoing business relationship (secured claims) have been paid in full.
(2) The goods subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full. The buyer must notify us immediately in writing if an application is made to open insolvency proceedings or if third parties access the goods belonging to us.
(3) If the buyer acts contrary to the contract, in particular if the purchase price is not paid, we are entitled to withdraw from the contract in accordance with the statutory provisions and then to demand the return of the goods on the basis of the retention of title.
(4) If the buyer processes the goods subject to retention of title in the ordinary course of business, the retention of title extends to the full value of the products resulting from processing, mixing or combining our goods, whereby we are deemed to be the manufacturer. If a third party property right remains in the event of processing, mixing or combining with goods, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Incidentally, the same shall apply to the produced product as to the goods delivered under reservation of title.
(5) If the buyer resells the goods subject to retention of title in the normal course of business, the buyer hereby assigns to us the resulting claim against the purchaser as a precaution – in the case of co-ownership of the goods subject to retention of title, proportionally to the co-ownership. The same shall apply to any other claims that take the place of secured goods or otherwise accrue with respect to reserved goods, e.g., insurance claims or tort claims resulting from loss or destruction of reserved goods. We accept this assignment. We revocably authorise the buyer to collect the claims assigned to us in its own name. We are entitled to revoke this collection authorisation if the buyer is in default of payment, if the buyer does not meet its payment obligations towards us or if we have made use of our right pursuant to § 7 para. 3 of these General terms and conditions of sale.
(6) If the realisable value of the securities exceeds our claims by more than 10%, we will release the securities of our choice at the request of the buyer.
§ 8 Software
(1) If software is included in the scope of delivery, the buyer is granted a non-exclusive right to use the software supplied including its documentation. It is made available for use on the goods intended for this purpose. Use of the software on more than one system is prohibited.
(2) The buyer may only reproduce, revise, translate or convert the software from the object code to the source code to the extent permitted by law (§§ 69 a ff. Copyright Act (UrhG)). The buyer undertakes not to remove manufacturer information, in particular copyright notices, or to change them without our prior express consent.
(3) All other rights to the software and the documentation including copies remain with us or with the software supplier. Sublicensing is not permitted.
§ 9 Place of performance, choice of law and jurisdiction
(1) The place of delivery follows from § 3 para. 1 of these General terms and conditions of sale and delivery. The place of payment and performance for all other obligations from the contract with the buyer is 32429 Minden. These regulations also apply if services rendered are to be reversed.
2) For these General terms and conditions of sale and delivery and the contractual relationship between us and the buyer, the law of the Federal Republic of Germany applies, excluding the UN sales law.
3) If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our place of business in 32429 Minden. In all cases, however, we are also entitled to take legal action at the general place of jurisdiction of the buyer. Statutory provisions that have precedence, in particular regarding exclusive responsibilities, shall remain unaffected.
§ 10 Miscellaneous</ strong>
(1) Should provisions of these General terms and conditions of sale and delivery be or become wholly or partially ineffective, the rest of the conditions shall remain in effect.
(2) Neither a personal signature nor an electronic signature is required to maintain the written form. Notifications by fax or email are sufficient to maintain the written form.
(3) The personal data necessary for the business transaction are stored in compliance with the applicable data protection regulations and are treated confidentially.
Last updated: 8. November 2018