General terms and conditions of sale (GTC)
- 1 General, Scope of application
(1) All deliveries, services and offers of the seller are made solely on the basis of these general terms of delivery. These are an integral part of all contracts, which the seller enters into with his contracted partners (“customer”) regarding deliveries and services offered by the seller. They also apply for all future deliveries, services or offers to the customer, even if they are not the subject of a further separate agreement.
(2) The GTC apply in particular to contracts for the sale and / or delivery of goods (“goods”), regardless of whether we manufacture the goods ourselves or purchase from suppliers (§§ 433, 651 BGB). Unless otherwise agreed, the general terms and conditions in the version valid at the time of the buyer’s order or at least in the version communicated to him 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) Only our GTC apply exclusively. Deviating, conflicting or supplementary terms and conditions of the buyer shall only become part of the contract if and insofar as we have expressly consented to their validity. This approval requirement applies in any case, for example, even if we carry out the delivery to him unconditionally with knowledge of the terms and conditions of the buyer.
(4) In individual cases, individual agreements with the purchaser (including collateral agreements, supplements and changes) shall in any case take precedence over these GTC. For the content of such agreements, subject to the contrary evidence, a written contract or our written confirmation shall prevail.
(5) Legally relevant declarations and advertisements of the purchaser with regard to the contract (eg setting of deadlines, notice of defects, withdrawal or reduction) must be made in writing, ie in writing or text form (eg letter, e-mail, fax). Statutory form regulations and further proof, in particular in case of doubt about the legitimacy of the declarant remain unaffected.
- 2 Conclusion of the contract
(1) Our offers are subject to alteration and non-binding. The order of the products by the customer is valid as a binding offer of contract. Acceptance can either be declared in written form or by the delivery of the products to the customer.
(2) The sole legal basis for the legal relationship between the seller and the client is the contract of sale concluded in writing, including these general terms of delivery. This completely reflects all agreements between the contracting parties regarding the subject matter of the contract. Verbal promises of the seller before the conclusion of this contract are legally non-binding and verbal agreements of the contracting parties are replaced by the written contract, unless it is expressly clear from them that they continue to be binding.
(3) Additions and amendments to the agreements made, including these general terms of delivery, must be in writing in order to be effective.
(4) Information provided by the seller about the subject of the delivery or service ( e.g. weights, dimensions, practical values, capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only indicative, unless the usability for the contractually agreed purpose does not require an exact match. These are not guaranteed characteristics, but are descriptions or features of the delivery or service. Differences which are customary in the trade and differences which result from legal regulations or technical improvements, as well as the replacement of components by parts of equal value, are permissible as long as they do not impair the contractually intended purpose.
(5) The seller retains the ownership or copyright for all offers and estimation of costs issued by him as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and auxiliary tools which is made available to the customer. Without the explicit agreement of the seller, the customer is not permitted to make these objects or the content of them accessible to third parties or make them known to third parties or have them used or reproduced either by himself or by third parties. On request by the seller he is required to return these objects entirely back to him and, if applicable, destroy any copies, even if they are no longer needed in the proper course of business, or if negotiations do not result in the conclusion of a contract. Legally relevant declarations and notifications made by the customer to us (e.g. setting of deadlines, notifications of defects, declarations of cancellation or reduction), are required to be in written form in order to be valid.
- 3 Delivery period and delay in delivery
(1) Deliveries are made ex works.
(2) Announced deadlines and fixed dates announced by the seller for deliveries and services are always only approximate, unless a fixed deadline or a fixed date has been specified or agreed. If shipment has been agreed, delivery dates and deadlines refer to the time of transfer to the carrier, shipper, or other for the transport contracted third party.
(3) The seller is not liable for the impossibility of delivery or for delays in delivery as far as they have been caused by force majeure or other events which were not foreseeable at the time of the conclusion of the contract (e.g. operating disruptions of all kinds, difficulties in obtaining material and energy, transport delays, strike, labor shortage, energy or raw material, difficulties in obtaining necessary official approvals, regulatory action or non-delivery, incorrect or non-timely delivery by suppliers etc.) for which the seller is not responsible. If such incidents essentially hamper or in fact prevent the seller to fulfill the delivery and the delay is not only of temporary duration, the seller is entitled to withdraw from the contract. In case of obstacles of temporary duration, the deadline for delivery or service will be extended or the delivery and service deadlines are postponed by the period of the obstruction plus an appropriate start-up period. If the customer cannot be expected to accept the delivery or the service because of the delay, he can withdraw from the contract by submitting the seller an immediate written declaration.
(4) The occurrence of our delay of delivery is governed by the statutory provisions. In any case, a reminder from the buyer is required. If we fall into delay of delivery, then the buyer can demand flat-rate replacement of its delay damage. The lump sum for each completed calendar week of default amounts to 0.5% of the net price (delivery value), but in total not more than 5% of the delivery value of the goods delivered late. We reserve the proof that the buyer has incurred no damage or only a much lower damage than the above flat rate.
(5) The rights of the buyer acc. § 8 of these GTC and our statutory rights, in particular in the case of an exclusion of the obligation to perform (eg due to impossibility or unreasonableness of performance and / or subsequent performance), remain unaffected
- 4 Delivery, transfer of risk, acceptance
(1) Delivery is ex warehouse, where the place of performance for the delivery and any subsequent performance is. At the request and expense of the buyer, the goods will be shipped to another destination (consignment purchase). Unless otherwise agreed, we are entitled to determine the nature of the shipment (in particular transport company, shipping route, packaging).
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. However, 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 forwarder, the carrier or the person or institution otherwise responsible for carrying out the consignment. Insofar as an acceptance has been agreed, this is decisive for the transfer of risk. In addition, the statutory provisions of the works contract law apply accordingly to an agreed acceptance. The transfer or acceptance is the same if the buyer is in default of acceptance.
(3) If the buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (eg storage costs). For this we charge a lump-sum compensation of 0.25% of the invoice amount of the delivery items to be stored per completed week.
(4) Proof of higher damages and our statutory claims (in particular compensation for additional expenditure, reasonable compensation, termination) shall remain unaffected; the lump sum is to be credited to further monetary claims. The buyer is entitled to prove that we have incurred no or only a significantly lower damage than the above flat rate.
- 5 Prices and Conditions of payment
(1) If not agreed otherwise in individual cases, our prices valid at the time of the conclusion of the contract do apply on the basis ex warehouse plus sales tax, if applicable.
(2) The customer pays for the costs of delivery ex warehouse and if requested also for the costs of a transport insurance. Any customs duties, charges, taxes and other public charges are to the customer’s account.
(3) The purchase price is due and payable within 30 days of the date of the invoice and delivery of the product unless individual payment terms are agreed. Upon the expiration of the payment deadline, the customer is in delay of payment. However, we are entitled at any time, even in the context of an ongoing business relationship, to carry out a delivery in whole or in part only against payment in advance.
(4) Upon expiry of the above payment period, the buyer is in default. The purchase price is subject to interest during 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 the commercial maturity interest (§ 353 HGB) remains unaffected.
(5) The buyer is only entitled to offsetting or retention rights insofar as his claim is legally established or undisputed. In the case of defects in the delivery, the counterclaims of the buyer remain unaffected.
(6) If after conclusion of the contract recognizable (eg by application for opening insolvency proceedings) that our claim to the purchase price is jeopardized by lack of performance or solvency of the buyer, we are according to the statutory provisions for refusal and – if necessary after setting a deadline – to terminate the contract (§ 321 BGB). In contracts for the production of unacceptable items (custom-made), we can declare the resignation immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected. At the end of the payment period, the buyer is in default.
- 6 Reservation of title
(1) We reserve the right to the property of the sold products until the full payment of all of our current and future claims from the contract of purchase and the current business relationship.
(2) Products subject to reservation of title may neither be pledged to third parties, nor assigned as collateral until full payment is made. The customer must immediately inform us in written form if and to what extent third parties attempt to seize the products that are our property. In the event that the buyer acts contrary to the contract, especially by the failure of the payable purchase price, we are entitled to cancel the contract according to the statutory provision and to reclaim the products due to the reservation of title. If the buyer does not pay the due purchase price, we may only assert these rights if we have unsuccessfully set a reasonable deadline for payment to the buyer or if such a deadline is dispensable according to the statutory provisions. The customer is entitled to sell or to process the products under reservation of title in the ordinary course of business. If the property rights remain with processing, mixing or combination with goods of third, we acquire co-ownership in proportion of the invoice values of the processed, mixed or connected goods. In addition, the same applies to the resulting product as to the goods delivered under retention of title.
(3) The customer assigns to us now and immediately all claims against third parties arising from the resale of the products equal to the amount of our approximate share of joint ownership pursuant to the aforementioned clause as security. We herewith accept the assignment. The obligations of the customer stated in Paragraph 2 shall also apply in view of the assigned claims.
(4) Besides ourselves, the customer remains authorized to the collection of the claims. We agree not to collect these claims as long as the customer properly meets his financial obligations, does not default of payment, no application is made for opening insolvency proceedings, and there is no other deficiency in the customer’s capacity. If this is the case, we may demand from the customer to inform us about the assigned claims and their debtor, to indicate all details needed for the collection, to hand out all the respective documents and to inform the debtors (third parties) about 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.
(5) Should the realized value of the collaterals exceeds our claims by more than 10%, we shall release collaterals of our own choice.
- 7 Warranty claims of the buyer
(1) The warranty period is one year from delivery or, if acceptance is required, from acceptance. This period does not apply to claims for damages of the client resulting from injury to life, limb or health or from intentional or grossly negligent breaches of duty by the seller or his vicarious agents, which in each case become statute-barred according to the statutory provisions.
(2) For the rights of the buyer in case of material and legal defects (including wrong and insufficient delivery), the statutory provisions apply, unless otherwise stated below. The prerequisite for any warranty rights of the purchaser is its proper fulfillment of all duties of examination and notification of defects owed in accordance with § 377 HGB (German Commercial Code).
(3) The delivered items shall be examined carefully immediately after delivery to the client or to the third party appointed by him. They shall apply as accepted by the buyer regarding obvious defects or other defects that would have been apparent in an immediate, careful investigation, if the seller does not receive a written notice of defects within seven working days after delivery. Regarding other defects, the delivered items shall be deemed to have been approved by the buyer if a complaint is not received by the seller within seven working days from the date on which the defect was revealed; If the defect was already apparent to the client under normal conditions of use at an earlier date, that earlier date is decisive for the commencement of the period of notice. At the request of the seller, a rejected delivery item shall be returned carriage paid to the seller. In case of legitimate complaint, the seller pays the costs of the cheapest shipping route; this does not apply if the costs increase because the item is located in a place other than the place of intended use.
(4) In the event of material defects of the delivered items, the seller is obliged and entitled within an appropriate timeframe to remedy or replace the item at his reasonable choice. In case of failure, ie. the impossibility, unreasonableness, refusal or inappropriate delay of the repair or replacement delivery, the client can withdraw from the contract or reduce the purchase price appropriately.
(5) If a defect is based on the fault of the seller, the customer may claim damages under the conditions specified in § 8.
(6) In the case of defects of components of other manufacturers, which the seller cannot eliminate for licensing or actual reasons, the seller will assert his warranty claims against the manufacturers and suppliers for the account of the client or assign them to the client. Warranty claims against the seller exist for such defects under the other conditions and in accordance with these general terms and conditions only if the judicial enforcement of the above claims against the manufacturer and supplier was unsuccessful or, for example, due to insolvency, hopeless. During the duration of the legal dispute, the limitation period of the respective warranty claims of the client against the seller is inhibited.
(7) The warranty does not apply if the client changes the delivery item without the consent of the seller or has it modified by third parties and the elimination of the defect becomes impossible or unreasonably difficult. In any case, the client has to bear the additional costs incurred by the change to remedy the defect.
(8) A delivery of used items agreed with the client in individual cases shall be made under exclusion of any warranty for material defects.
- 8 Liability for damages due to fault
(1) The liability of the seller for damages, for whatever legal reason, in particular from impossibility, delay, inadequate or incorrect delivery, breach of contract, breach of obligations in contract negotiations and tort, as far as it is in each case at fault, is in accordance with this § 8 restricted.
(2) The seller shall not be liable in the case of simple negligence on the part of its bodies, legal representatives, employees or other vicarious agents, insofar as it is not a violation of essential contractual obligations. Essential to the contract are the obligation to timely delivery and installation of the delivery item, its freedom from defects in title and such material defects that affect its functionality or serviceability more than insignificantly, as well as advice, protection and custody duties that enable the client to use the contractual object or the protection of life or limb of the client’s personnel or the protection of their property against significant damage.
(3) Insofar as the seller is fundamentally liable for damages pursuant to § 8 (2), this liability is limited to damages which the seller foresaw upon conclusion of the contract as a possible consequence of a breach of contract or which he should have foreseen when applying due care. Indirect damage and consequential damage, which are the result of defects in the delivery item, are also only substitutable insofar as such damage is typically to be expected in the case of the intended use of the delivery item.
(4) In the case of liability for simple negligence, the Seller’s obligation to pay compensation for damage to property and the resulting further pecuniary loss is limited to an amount of € 1,000.00 per claim (corresponding to the current coverage of its product liability or liability insurance), even if it is a breach of essential contractual obligations.
(5) The above exclusions and limitations of liability apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of the seller.
(6) Insofar as the seller provides technical information or acts in an advisory capacity and this information or advice does not belong to the contractually agreed scope of services owed by him, this is done free of charge and to the exclusion of any liability.
(7) The limitations of this § 8 do not apply to the liability of the seller for willful conduct, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
- 9 Applicable law and place of jurisdiction
(1) If the client is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes arising from the business relationship between seller and client is at the choice of the Seller either Darmstadt, Germany or the location of the clients principal office. For complaints against the seller, however, Darmstadt is the exclusive place of jurisdiction in these cases. Mandatory statutory provisions on exclusive jurisdictions remain unaffected by this provision.
(2) The relations between the seller and the client are exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) does not apply.
(3) Insofar as the contract or these general terms of delivery contain loopholes, those legally effective provisions shall be deemed to have been agreed which the contracting parties would have agreed according to the economic objectives of the contract and the purpose of these general terms and conditions of delivery if they had known the regulation gap.
Note: The client acknowledges that the seller stores data from the contractual relationship according to § 28 of the Federal Data Protection Act for the purpose of data processing and reserves the right to transfer the data to third parties (eg insurance companies) for the fulfillment of the contract.