§ 1 Scope, form
(1) These General Terms and Conditions of Sales (GTCS) apply to all our business relationships with our customers ("Purchasers"). The GTCS apply only if the Purchaser is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The GTCS apply in particular to contracts for the sale and/or delivery of movable items ("goods"), regardless of whether we manufacture the goods ourselves or purchase from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the general terms and conditions in the version valid at the time of the Purchaser's order or at least in the version communicated to him/her in text form as a framework agreement also apply to similar future contracts, without us having to refer to them again in each individual case.
(3) Our GTCS apply exclusively. Deviating, conflicting or supplementary terms and conditions of the Purchaser shall only become part of the contract if and insofar as we have expressly consented to their validity. This requirement of consent applies in all cases, e.g. even if we carry out delivery to the Purchaser unconditionally with knowledge of the terms and conditions of the Purchaser.
(4) In individual cases, specific agreements with the Purchaser (including collateral agreements, supplements and amendments) shall in all cases take precedence over these GTCS. For the content of such agreements, subject to contrary evidence, a written contract or our written confirmation is decisive.
(5) Legally relevant statements and notifications of the Purchaser regarding the contract (e.g. the setting of deadlines, notice of defects, withdrawal from the contract or diminutions) are to be given in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in case of doubt about the legitimacy of the declarant, remain unaffected.
(6) References to the validity of statutory regulations are only for clarifying purposes. Even without such clarification, the statutory regulations apply unless they are directly amended or expressly excluded in these GTCS.
§ 2 Conclusion of Contract
(1) Our offers are non-binding. This also applies if we have provided the Purchaser with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents - including in electronic form - for which we reserve property rights and copyrights.
(2) The order of the goods by the Purchaser is considered a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contract offer within seven days of its receipt.
(3) The acceptance can either be declared in writing (e.g. by order confirmation) or by delivery of the goods to the Purchaser.
§ 3 Delivery Period and Delivery Delay
(1) The delivery period is individually agreed on or specified by us when accepting the order.
(2) If we cannot meet binding delivery deadlines for reasons for which we are not responsible (unavailability of the service), we will inform the Purchaser without delay and at the same time notify him/her of the expected new delivery deadline. If the service is not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will reimburse immediately any payments already made by the Purchaser. Examples of non-availability of the service in this sense, would be in particular a non-timely delivery by our supplier, if we have concluded a congruent hedging transaction, neither we nor our suppliers are at fault, or we are not obliged to procure in specific cases.
(3) The occurrence of our default in delivery is determined by the statutory regulations.
(4) The rights of the Purchaser according to § 8 of these GTSC and our statutory rights, in particular in the case of an exclusion of the obligation to perform (for example due to the provision of the service being impossible or unreasonable to carry out at the time or at a later date), remain unaffected.
§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
(1) Delivery is ex warehouse in Krefeld, Germany, where the place of performance for the delivery and any subsequent performance is. At the request and expense of the Purchaser, the goods will be shipped to another destination (consignment purchase). Unless otherwise agreed, we are entitled to determine the nature of the shipment (for example, choice of carrier, shipping route, packaging).
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Purchaser upon handover at the latest. However, with consignment purchases, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the forwarder, the carrier or the person or institution otherwise responsible for carrying out the shipment. Insofar as acceptance has been agreed, this is decisive for the transfer of risk. In addition, the statutory provisions of work and labour law apply accordingly to an agreed acceptance. The transfer or acceptance is the same if the Purchaser is in default of acceptance.
(3) If the Purchaser is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Purchaser is responsible, we shall be entitled to demand compensation for the resulting damages including additional expenses (for example storage costs) incurred. For this we charge a standard compensation amount of 10.00 EUR per calendar day, starting with the delivery date or - in the absence of a delivery date - with the notification of readiness for shipment of the goods.
Proof of greater damages and our statutory rights (in particular compensation for additional expenditure, reasonable compensation, termination) remain unaffected; the standard compensation is to be credited to more extensive claims. The Purchaser is entitled to prove that we have incurred no or only significantly lower damages than the above standard rate.
§ 5 Prices and Terms of Payment
(1) Unless otherwise agreed in individual cases, our current prices at the time of the conclusion of the contract shall apply, ex warehouse, plus statutory sales/value-added tax.
(2) In the case of a consignment purchase (§ 4 (1)), the Purchaser shall bear the transport costs ex warehouse and the costs of any transport insurance desired by the Purchaser. Any duties, fees, taxes and other public charges shall be borne by the Purchaser.
(3) The purchase price is due and payable within 30 days of invoicing and delivery or acceptance of the goods. However, we are entitled at any time, even within an on-going business relationship, to carry out a delivery in whole or in part, only following payment in advance. We will declare such a proviso with the order confirmation at the latest.
(4) Upon expiry of the above payment period, the Purchaser is in default. The purchase price is subject to interest for the duration of the default at the applicable statutory default interest rate. We reserve the right to assert further damages caused by delay. For merchants our claim to commercial maturity interest (§ 353 HGB) remains unaffected.
(5) The Purchaser is only entitled to offsetting or retention rights insofar as his claim is legally established or undisputed. In the case of deficiencies in delivery, the opposing rights of the Purchaser remain unaffected in accordance with. § 7 (6) (2) of these GTCS.
(6) If after conclusion of the contract it becomes apparent (e.g. by application for the opening of insolvency proceedings) that our claim to the purchase price is jeopardized by lack of means to pay of the Purchaser, we are, in accordance with the statutory regulations, entitled to refuse performance and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In contracts for the production of custom-made items, we can declare the withdrawal immediately; the statutory regulations on the dispensability of the deadline remain unaffected.
§ 6 Retention of Title
(1) We retain ownership of the goods sold until full payment has been received, for all our present and future claims under the purchase agreement and within an on-going business relationship (secured claims).
(2) The goods subject to retention of title may not be pledged to third parties or transferred as collateral before full payment of the secured claims is made. The Purchaser must notify us immediately in writing if an application for the opening of insolvency proceedings is made or if third party access (for example seizure) occurs to the goods belonging to us.
(3) In the event of breach of contract by the Purchaser, in particular in the case of non-payment of the due purchase price, we are entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand return of the goods on the basis of the retention of title. The request for return of goods does not at the same time include a declaration of withdrawal; we are rather entitled to demand only return of the goods and to reserve the right of withdrawal. If the Purchaser does not pay the due purchase price, we may only assert these rights if we have set a reasonable deadline for payment to the Purchaser or if such a deadline is dispensable according to the statutory provisions.
(4) The Purchaser is entitled until further notice in accordance with § 6 (4) (c) to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following additional provisions apply.
(a) Retention of title extends to the full value of products resulting from the processing, mixing or combination of our goods, and we shall be deemed to be the manufacturer. If the property rights of third parties remain after processing, mixing or combining their goods with ours, we acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In addition, the same applies to the resulting product as to the goods delivered under reservation of title.
(b) The purchaser hereby assigns to us claims against third parties resulting from the resale of the goods or the product as security, in total or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The obligations of the Purchaser mentioned in § 6 (2) also apply with regard to the assigned claims.
(c) To collect the claim, the Purchaser remains authorized as do we. We undertake not to collect the claim as long as the Purchaser meets his payment obligations to us, there is no deficiency in his ability to perform and we are not exercising the right of reservation of title according to § 6 (3). If this is the case, we can demand that the Purchaser informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the related documents and notifies the debtors (third parties) of the assignment. In addition, in this case, we are entitled to revoke the purchaser's authority to resell and process the goods subject to retention of title.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall, at the request of the Purchaser, release securities of our choice.
§ 7 Purchaser's Claims for Defects
(1) Regarding the rights of the Purchaser in the case of material and legal defects (including wrong and short delivery as well as improper installation or faulty assembly instructions), the statutory regulations apply unless otherwise stated as below. In all cases, the special statutory provisions remain unaffected regarding final delivery of unprocessed goods to a consumer, even if the latter has further processed them (supplier's recourse in accordance with §§ 478 BGB). Claims arising from supplier's recourse are excluded if the defective goods have been further processed by the Purchaser or another contractor, e.g. by incorporation into another product.
(2) The basis of our liability for defects is above all, the agreement made on the nature of the goods. As an agreement on the nature of the goods, all product descriptions which are part of the individual contract or have been made public by us (in particular in catalogues or on our Internet homepage) shall apply.
(3) Insofar as the nature has not been agreed upon, it shall be judged according to the legal regulations whether there is a defect or not (§ 434 (1) sentences (2) and (3) BGB). However, we do not assume any liability for public statements made by the manufacturer or other third parties (for example, advertising statements).
(4) Purchaser's claims for defects require that he/she has complied with his/her statutory inspection and complaint obligations (§§ 377, 381 HGB). If there is a defect at the time of delivery, the examination or at any later time, we must be notified immediately in writing. In any case, obvious defects must be reported in writing within seven working days of delivery and any defects that are not identifiable during the investigation within the same period from discovery. If the Purchaser fails to properly examine and/or report a defect, our liability for the defect that we have not been notified of in a timely or proper manner is excluded under statutory regulations.
(5) If the delivered goods are defective, we can first of all choose whether we will make good by rectifying the defect (rectification) or by delivering a defect-free product (replacement). Our right to refuse such subsequent performance under statutory requirements remains unaffected.
(6) We are entitled to make the subsequent performance owed dependent on the Purchaser paying the purchase price due. The Purchaser is, however, entitled to retain a portion of the purchase price which is reasonable in relation to the defect.
(7) The Purchaser shall give us the time and opportunity required to carry out the subsequent performance owed, and in particular shall return the rejected goods for examination purposes. In the case of replacement, the Purchaser has to return the defective item(s) according to the legal regulations. The subsequent performance does not include removal of the defective item or reinstallation if we were originally not obliged to install.
(8) The expenses incurred for the purposes of testing and subsequent performance, in particular transport, travel, labour and material costs as well as any removal and installation costs shall be borne or refunded in accordance with the statutory regulations, if there actually is a defect. Otherwise, we may demand compensation from the purchaser for costs incurred due to the unjustified demand for rectification (in particular inspection and transport costs), unless the absence of defect was not apparent to the purchaser.
(9) In urgent cases, e.g. in the case of risk to operational safety or to avoid disproportionate damage, the Purchaser has the right to rectify the defect himself and to demand compensation from us for the expenses necessary. We are to be informed immediately of such self-rectification, if possible beforehand. The right to self-rectification is invalid if we were entitled to refuse such subsequent performance according to the statutory provisions.
(10) If the subsequent performance has failed or a reasonable period set by the Purchaser for the subsequent performance has expired without result or is dispensable in accordance with the statutory regulations, the Purchaser may withdraw from the purchase contract or reduce the purchase price. With a minor defect, however, the right of withdrawal does not apply.
(11) Claims by the purchaser for damages or compensation for futile expenses are valid - even in the case of defects - only in accordance with § 8 and are otherwise excluded.
§ 8 Other Liability
(1) Insofar as these GTCS, including the following provisions, do not stipulate otherwise, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with statutory regulations.
(2) We shall be liable for damages - irrespective of the legal grounds - in the context of fault liability in cases of intent and gross negligence. In cases of ordinary negligence, we are subject only to a milder standard of liability according to legal regulations (for example, for taking care in own affairs)
a) for damage resulting in injury to life, limb or health
b) for damages resulting from a non-insubstantial breach of a major contractual obligation (an obligation the fulfilment of which makes the proper execution of the contract at all possible and the compliance with which the contractual partner regularly relies and may rely on); however, in this case, our liability is limited to compensation for foreseeable, typically occurring damage.
(3) The liability limitations resulting from § 8 (2) shall also apply to breaches of duty by or for the benefit of persons whose fault we are responsible for under statutory regulations. They do not apply if we fraudulently concealed a defect or assumed a guarantee for the quality of the goods and for claims of the Purchaser under the Product Liability Act.
(4) Due to a breach of duty that is not a defect, the Purchaser can only resign or terminate if we are responsible for the breach of duty. A free right of termination of the Purchaser (in particular according to §§ 650, 648 BGB) is excluded. In addition, legal requirements and legal consequences apply.
§ 9 Limitation Period
(1) Notwithstanding § 438 (1) (3) BGB, the general period of limitation for claims arising from material and legal defects is one year from delivery. Insofar as acceptance has been agreed, the period of limitation begins with the acceptance.
(2) If the goods are, however, a construction or a thing that has been used for a building in accordance with its customary use and have caused the building to be defective (building material), the period of limitation shall be 5 years from the date of delivery (§ 438 (1) (2) BGB). Further statutory special regulations for period of limitation remain unaffected (in particular § 438 (1) (1), & para. (3), §§ 444, 445b BGB).
(3) The above limitation periods for purchasing rights also apply to contractual and non-contractual claims for damages of the Purchaser, that are based on defective goods, unless application of the conventional statute of limitations (§§ 195, 199 BGB) would in individual cases lead to a shorter limitation period. Claims for damages of the Purchaser according to § 8 (2) sentence 1 and sentence 2 (a), also according to product liability law, are subject to limitation exclusively according to the statutory limitation periods.
§ 10 Applicable Law and Place of Jurisdiction
(1) For these GTCS and the contractual relationship between us and the Purchaser, the law of the Federal Republic of Germany applies to the exclusion of international uniform law, in particular the UN Sales Convention.
(2) If the purchaser is a merchant according to 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 Krefeld. The same applies if the Purchaser is an entrepreneur in the sense of § 14 BGB. However, in all cases, we are also entitled to file a claim at the place of performance of the delivery obligation according to these GTCS, or according to an overriding individual agreement or at the general place of jurisdiction of the Purchaser. Overriding laws, especially regarding exclusive jurisdictions, remain unaffected.