Sales, Delivery and Payment Terms
1. General, Scope
(1) These contractual terms apply to all our business relations with our customers (hereafter referred to as: “Buyer”). Contractual terms only apply if the buyer is an entrepreneur {§ 14 of the German Civil Code), a legal person under public law or a legal separate estate.
(2) The contractual terms apply in the respective version as a framework agreement, also for future contracts on the sale and/or delivery of moveable objects to the same buyer without us being obliged to refer to the latter in each individual case.
(3) Our contractual terms apply exclusively. Deviating, contrary or additional Terms and Conditions of the buyer shall only become an integral part of the agreement insofar as we have expressly consented to their application. This consent requirement applies in any case, and even for instance, when we perform delivery unconditionally in awareness of the buyer’s T&Cs.
(4) Separate agreements reached with the buyer in individual cases (including supplementary agreements, additions and amendments) always take precedence over these contractual terms. To be authoritative, the content of such agreements requires a written contract or our written confirmation.
(5) Legally relevant declarations and notices to be submitted to us by the buyer following conclusion of contract (e.g. deadlines, notice of shortcomings, declaration of withdrawal or reduction) require the written form to be effective.
(6) References to the applicability of statutory regulations are purely for clarification purposes. Therefore, even without such clarification the statutory regulations apply, insofar as they have not been directly amended or expressly excluded in these contractual terms.
2. Contract Conclusion
(1) Our offers are subject to change and without obligation. This also applies when we send the buyer catalogues, other product descriptions or documents – also in electronic form – to which we reserve title and copyrights.
(2) The order placed by the buyer is deemed as a binding contractual offer. Insofar as not stated otherwise in the order, we are entitled to accept this contractual offer within two weeks of receipt.
(3) Acceptance can be declared in writing (e.g. by order confirmation) or delivery of the goods to the buyer.
3. Delivery Period and Default
(1) The delivery period is agreed individually or specified on the order acceptance.
(2) Insofar as we are unable to adhere to binding delivery periods for reasons for which we are not responsible (non-availability of the service), we shall notify the buyer immediately, and at the same time impart the new estimated delivery date. If the service is not available within the new delivery period either, we are entitled to withdraw partially or wholly from the contract; we shall reimburse any payments made by the buyer without delay. Within this meaning, in particular, late delivery to us by our supplier if we have concluded a congruent covering transaction with the latter, counts as non-availability of service. Our statutory rights of withdrawal and cancellation, and the statutory regulations governing the completion of contract if the obligation to perform is excluded ( e.g. impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected. The buyer’s withdrawal and cancellation rights also remain unaffected pursuant to § 9 of these contractual terms.
(3) The date on which our default commences is determined according to the statutory regulations. In any case a reminder by the buyer is required.
4. Delivery, Warehouse, Transfer of Risk, Acceptance, Acceptance Default, Make-and-Hold Orders
(1) Delivery is ex warehouse, which is also place of fulfilment. At the buyer’s demand and expense the goods shall be sent to another destination (contract of sale involving the carriage of goods). Insofar as not agreed otherwise, we are entitled to determine the nature of the carriage (in particular forwarding company, transport mode, packaging) at our own discretion.
(2) The risk of accidental loss and deterioration of the goods shall be transferred to the buyer at the latest on handover. However, in the case of sales involving the carriage of goods, the danger of accident loss and deterioration of goods, as well as risk of delay, is already transferred when the goods are delivered to the forwarding company, freight carrier or other person or body commissioned with the performance of carriage. Insofar as an acceptance procedure is agreed, this shall be definitive for the transfer of risk. Moreover the statutory regulations of German work and services legislation shall apply to an agreed acceptance procedure. Handover or acceptance is regarded as equivalent if the buyer is in default of acceptance.
(3) If the buyer defaults on acceptance, fails to perform an obligation of cooperation, or our delivery is delayed due to other reasons for which the buyer is responsible, we are entitled to demand reimbursement for the resultant damage including extra expenses (e.g. warehousing costs).
(4) If holding goods to order is agreed, the latter shall be ordered up in as equal monthly quantities as possible within the agreed order periods. The maximum deadline for make-and hold orders is twelve months from availability of the goods ex warehouse. Should no division of quantities be performed within the envisaged period, the ordered goods shall be apportioned as we think fit.
5. Prices and Payment Terms
(1) The agreed prices apply ex warehouse plus statutory value added tax.
(2) In the case of contracts of sale involving carriage (§ 4 para. 1) the buyer bears the shipping costs ex warehouse and the costs of any shipping insurance the buyer requires. The buyer pays any customs, fees, taxes and other official levies. In accordance with the German Packaging Ordinance we do not take back shipping and any other packaging, they become the property of the buyer, with the exception of pallets.
(3) Payments are rendered only to us. Agents and travelling representatives are not authorised to collect payments.
(4) On expiry of the payment term the buyer is in default. During the default period interest shall be paid on the purchase price according to the respectively applicable statutory default interest rate. We reserve the right to assert further claims for damage caused by default. Our claim against merchants for commercial maturity interest {§ 353 of the German Commercial Code) remains unaffected.
(5) The buyer is only entitled to rights of set-off and retention insofar as their claim is legally confirmed or undisputed. In the event of delivery shortcomings § 7 para. 6 remains unaffected.
(6) If, following conclusion of the contract, it becomes clear that our claim to the purchase price is endangered by the buyer’s lack of solvency (e.g. by an application to initiate insolvency proceedings), according to the statutory regulations regarding the withholding of payment and – if necessary after fixing a period of grace – we are entitled to withdraw from the agreement (§ 321 of the German Civil Code). In the case of agreements for the production of non-fungible goods (custom-made products) we can declare our withdrawal immediately; the statutory regulations regarding the dispensability of fixing a period of grace remain unaffected.
6. Retention of Title
(1) We reserve the right of property to the sold goods until all our current and future claims from the sales agreement and a current business relationship (secured claims) have been paid in full.
(2) Before the secured receivables are paid in full, the goods may neither be pledged nor assigned by way of security to third parties. The buyer pledges to notify us immediately in writing if and insofar as access is made by third parties to goods belonging to us.
(3) If the buyer breaches the agreement, in particular by non-payment of the due purchase price, we are entitled to withdraw from the agreement according to the statutory regulations, and to demand back the goods on the grounds of retention of title and withdrawal. If the buyer does not pay the due purchase price, we may assert these rights if we have previously fixed an appropriate period of grace for payment to no avail, or if, according to the statutory regulations, such a period of grace is dispensable.
(4) In the normal course of business the buyer is authorised to resell and/or further process the goods subject to retention of title. In this case the following provisions apply additionally.
a) The retention of title covers products resulting from the processing, mixing or connection of our goods to their full value, whereby we are regarded as manufacturer. If, in the course of processing, mixing or connection with third party goods, the latter’s retention of title exists, we shall acquire co-ownership in proportion to the invoice value of the processed, mixed or connected goods. Moreover, the same applies to the resultant product as to the delivered goods subject to retention of title.
b) For safety’s sake, the receivables due from third parties from the resale of the goods or product shall already be transferred to us by the buyer in full or to the value of any co-ownership proportion in accordance with the preceding section. We accept the assignment. The buyer’s obligations specified in para. 2 also apply in view of the assigned receivables.
c) Aside from us the buyer is authorised to collect receivables. We pledge not to collect receivables as long as the buyer fulfils their payment obligations to us, does not default on payment, no application initiating insolvency proceedings has been submitted, and there are no other deficiencies in the buyer’s financial circumstances. However, if this is the case, we can demand that the buyer reveal the assigned receivables and their debtors to us, furnish us with all the necessary details for collection, supply the appropriate documents, and notify the debtors (third parties) of assignment.
d) If the potential value of the securities exceeds our claims by more than 10%, on the buyer’s demand we shall release securities at our discretion.
7. Buyer’s Warranty Claims
(1) Unless stipulated otherwise hereinafter the statutory regulations apply to the buyer’s rights in the event of defects of material and title (including delivery of incorrect goods and quantities). In all cases the separate statutory regulations on final delivery of the goods to a consumer (supplier recourse pursuant to §§ 478, 479 of the German Civil Code) remain unaffected.
(2) Our warranty for defects is primarily based on the agreement reached on the quality of the goods. Those product descriptions designated as such (also those of the manufacturer) presented to the buyer prior to order placement or included in the agreement similarly to these terms and conditions of business, are deemed to constitute the agreement on the quality of the goods.
(3) Insofar as no qualities were agreed, assessment shall be according to statutory regulations as to whether a defect exists or not (§ 434 para. 1 clause 2 and 3 of the German Civil Code). However we do not accept any liability for public statements by the manufacturer or other third parties (e.g. advertising claims). Minor deviations in quality, cut and colour shall not constitute defects.
(4) Warranty claims by the buyer are conditional to the latter having fulfilled their statutory obligations of inspection and notice of defects (§§ 377, 381 of the German Commercial Code). If, on inspection, or subsequently a defect is detected, we are to be immediately notified in writing thereof. Notification is deemed to be immediate if it takes place within one week; timely dispatch of the notice suffices to meet the deadline. Irrespective of this obligation of inspection and notification, the buyer must notify us in writing of any obvious defects (including delivery of incorrect goods or insufficient quantities) within one week of delivery. In this case also, timely dispatch of the notice shall suffice to meet the deadline. Should the buyer fail to perform proper inspection and/or notification of defects, our liability for unnotified defects is excluded.
(5) Before other rights due to defective goods are asserted we shall first be afforded the opportunity of supplementary performance (remedying of the defect or delivery of a faultless article, § 439 para. 1 of the German Civil Code).
(6) We are entitled to require that the owed supplementary performance be dependent on the buyer paying the due purchase price. The buyer is however entitled to withhold payment in a proportion that is commensurate with the defect.
(7) The buyer shall grant us the necessary time and opportunity for the owed supplementary performance, and shall in particular hand over to us the defective goods for test purposes. In the case of replacement delivery the buyer shall return the defective goods to us in accordance with the statutory requirements. Return dispatch shall be coordinated with us in advance.
(8) The expenses entailed for the purpose of testing and supplementary performance, in particular shipping, travel, labour and material costs shall be borne by us in the event of an actual defect. However, if a buyer’s demand for remedying a defect proves to be unjustified, we can require the buyer to reimburse us the costs thus incurred.
(9) If supplementary performance is unsuccessful, or an appropriate period to be set by the buyer for supplementary performance
expires without success, or is deemed dispensable according to the statutory regulations, the buyer can withdraw from the purchase agreement or reduce the purchase price. A minor defect is not however grounds for a right of withdrawal.
(10) The buyer’s claims for compensation or reimbursement of futile expenditure are only justified according to § 9 and are otherwise excluded.
8. Proprietary Rights
The buyer assumes full responsibility and liability for articles manufactured according to the buyer’s specifications so that the rights of third parties – regardless of their nature – are not breached.
9. Other Liability
(1) Unless otherwise arising from these contractual terms and the following provisions, we accept liability in the event of a breach of contractual and non-contractual obligations according to the relevant statutory regulations.
(2) We shall be liable for damage – regardless of the legal reason – in the case of wilful intention and gross negligence. In the case of ordinary negligence we shall only
a) be liable for damage arising from injury to life, limb or health,
b) for damage arising from the breach of a major contractual obligation (an obligation whose fulfilment permits the proper execution of the agreement at all, and on whose observance the contracting partner relies, and may rely upon on a regular basis); in this case however our liability is limited to compensation of foreseeable, typically occurring damage.
(3) The liability restrictions arising from para. do not apply insofar as we maliciously conceal a defect, or have guaranteed the quality of the goods. The same applies to the buyer’s claims according to the German Product Liability Act.
(4) In the case of a breach of obligation not due to a defect, the buyer can only withdraw from or cancel the contract if we are responsible for the breach of obligation. An unrestricted right of cancellation by the buyer (in particular pursuant to §§ 651, 649 of the German Civil Code) is excluded. Other than that, the statutory regulations and legal consequences apply.
10. Limitation
(1) In deviation to § 438 para. 1 No. 3 of the German Civil Code the general limitation period for claims related to material and title defects shall be one year from delivery. Insofar as acceptance has been agreed upon, the limitation period shall begin with acceptance.
(2) The separate statutory regulations regarding in rem restitution claims by third parties
(§ 438 para. 1 No. 1 of the German Civil Code), malicious conduct on the part of the seller (§ 438 para. 3 of the German Civil Code) and for supplier recourse claims for final delivery to a consumer (§ 479 of the German Civil Code) remain unaffected.
(3) These limitation periods also apply to the buyer’s contractual and non-contractual compensation claims based on defective goods, unless the application of the regular statutory limitation period (§§ 195, 199 of the German Civil Code) would result in a shorter limitation period in individual cases. The limitation periods of the German Product Liability Act remain unaffected in any case. Otherwise the statutory limitation periods according to § 9 apply exclusively to compensations claims asserted by the buyer.
11. Applicable Law and Venue
(1) The law of the Federal Republic of Germany applies to these contractual terms and all legal associations between us and the buyer to the exclusion of all international and supranational (contractual) legislation, and in particular to the UN Convention on Contracts for the International Sale of Goods (CISG). On the other hand, the requirements and effects of the retention of title pursuant to § 6 are subject to the law at the relevant location of the goods, insofar as afterwards the choice of German law as governing law is impermissible or ineffective.
(2) If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a legal separate estate the sole – and also international – place of jurisdiction for all disputes arising directly or indirectly from this contractual relationship is our registered office in Lichtenberg. The place of jurisdiction also applies to bill of exchange and cheque litigation. However, we are also entitled to bring an action at the buyer’s general place of jurisdiction.