General Sale Terms & Conditions
§ 1 Area of Applicability, Form
(1) These General Sale Terms & Conditions (GSC) apply for all our business relations with our customers (“Purchaser”). The GSC apply only if the Purchaser is an entrepreneur (§ 14 of the German Civil Code (BGB)), a public-law legal entity or a public-law special fund.
(2) The GSC apply in particular for contracts concerning the sale and/or the supply of moveable items (the “Goods”), regardless of whether we manufacture the Goods ourselves or purchase them from suppliers (§ 433, § 650 of the BGB). Insofar as nothing to the contrary is agreed upon, the GSC apply in the version applicable at the time of the Purchaser placing the order or at least in the version most recently communicated to the Purchaser as a framework agreement also for the same kind of future contracts, without us having to state this in every individual instance.
(3) Our GSC apply exclusively; Deviating, contrary or augmenting General Terms & Conditions of the Purchaser only become a part of the contract if and insofar as we have expressly consented to their application. This consent requirement applies in every instance, for example even if we execute the delivery to the Purchaser without reservation, in knowledge of the Purchaser’s GTC.
(4) In every instance, individual agreements entered into with the Purchaser in the individual case (including supplementary agreements, addenda and amendments) have priority over these GSC. Subject to evidence to the contrary, a written contract or our written confirmation is authoritative for the contents of such agreements.
(5) Legally-relevant declarations and announcements by the Purchaser with regard to the contract (e.g. deadlines, defect notifications, rescission or reduction) are to be made in writing, i.e. in written or text form (e.g. letter, email, fax). Statutory form provisions and other proof, particularly in cases of doubt about the authority of the party making the declaration, shall remain unaffected.
(6) References to the application of statutory provisions have only clarifying significance. Even without such a clarification, therefore, the statutory provisions apply insofar as they are not directly modified or expressly excluded in these GSC.
§ 2 Entry into Contract
(1) Our offers are non-binding and are subject to change without notice.
(2) The ordering of Goods by the Purchaser is deemed to be a binding contract offer. Insofar as nothing to the contrary arises from the order, we are entitled to accept that contract offer within 14 days after its receipt by us.
(3) Acceptance can be declared either in writing (e.g. through order confirmation) or by supplying the Goods to the Purchaser.
§ 3 Delivery Period and Default in Delivery
(1) The delivery period is individually agreed upon or is given by us when accepting the order.
(2) Insofar we are unable to adhere to binding delivery periods for reasons which are not attributable to us (unavailability of performance), we will inform the Purchaser of this without undue delay, and at the same time will give the probable, new delivery period. If the performance is not available even within the new period, we are entitled to rescind the contract in whole or in part; we will refund without undue delay any consideration already rendered by the Purchaser. An instance of non-availability of the performance in this sense shall particularly be our non-timely supply by our supplier, if we have entered into a congruent covering transaction, if fault is attributable neither to us nor our supplier, or if in the individual case we are not obliged to make an acquisition.
(3) Occurrence of our default in delivery is determined pursuant to the statutory provisions. In any event, however, a warning by the Purchaser is necessary.
§ 4 Delivery, Transfer of Risk, Acceptance, Mora Accipiendi
(1) Delivery is made in principle by a contract partner defined by us, in which regard dispatch is made to the respective address given by the Purchaser. The restrictions regarding the regions available when selecting the country are to be complied with in connection with shipment. Moreover, insofar as nothing to the contrary is agreed upon, we are entitled to determine ourselves the appropriate type of shipment (particularly transport company, dispatch route, packaging) in our reasonable discretion. We owe only timely, proper supply of the goods to the transport company, and are not responsible for delays caused by the transport company. Any delivery period named by us (the period between handover by us to the transport company and delivery to the Purchaser) is thus non-binding.
(2) The risk of accidental destruction and accidental deterioration of the Goods is transferred to the Purchaser at the latest upon handover. In the case of mail order, however, the risk of accidental destruction and accidental deterioration of the Goods as well as the delay risk are transferred upon supply of the goods to the forwarding agent, the carrier or the other party or institution intended to perform the delivery. Insofar as acceptance is agreed upon, this is authoritative for the transfer of risk. Also the statutory provisions of the law of contracts for services apply correspondingly for an agreed acceptance. Handover or acceptance shall be deemed to have been effected if the Purchaser is in mora accipiendi.
(3) If the Purchaser is in mora accipiendi, if the Purchaser fails to cooperate, or if our delivery is delayed due to other reasons which are attributable to the Purchaser, then we are entitled to demand compensation of the damage and loss arising therefrom, including additional expenditure (e.g. storage costs). In the case of storage by the seller, storage fees are 0.25% of the invoice amount for the delivery items to be stored, per week elapsed. Evidence of a higher amount of damage or loss and our statutory claims (particularly compensation of additional expenditure, reasonable compensation, termination) remain unaffected; the percentage flat-rate amount is to be set off against other monetary claims, however. The Purchaser retains the right to prove that we have not suffered any damage or loss at all or only a significantly lower amount of damage or loss than the abovementioned costs.
§ 5 Prices and Payment Conditions
(1) If nothing to the contrary is agreed upon in the individual case, our prices which are respectively current at the time of entry into contract, from the warehouse, plus statutory VAT, apply.
(2) In the case of mail order (§ 4.1), the Purchaser bears the transport costs from the warehouse and the costs of any transport insurance requested by the Purchaser. Any customs duties, fees, taxes and other public dues are borne by the Purchaser.
(3) The purchase price is due and to be paid within 14 days from invoicing and delivery or acceptance of the Goods. Payment is made in a non-cash manner into the bank account named in the invoice.
(4) However, also in the framework of an ongoing business relationship, we are entitled at any time to effect delivery wholly or partially only after payment has been made in advance. We declare a corresponding reservation at the latest with the order confirmation.
(5) From the 31st day after receipt of our invoice, the Purchaser is in default. Interest is to be levied on the purchase price during the default at the respectively-applicable statutory default interest rate. We reserve the right to claim more extensive default damage and loss. Our claim for commercial maturity interest (§ 353 of the German Commercial Code (HGB)) remains unaffected against businesspeople.
(6) The Purchaser is entitled to set off rights or rights of retention only insofar as its claim has been finally determined in a legally-binding manner or is undisputed. In the event of defects in the delivery, the Purchaser’s counter-rights, particularly pursuant to § 7 paragraph 6, sentence 2 of these GSC, remain unaffected.
(7) If after entering into the contract it becomes recognisable that our claim for the purchase price is jeopardised as a result of the Purchaser’s lack of ability to pay (e.g. as a result of the initiation of insolvency proceedings), then pursuant to the statutory provisions we are entitled to refuse performance and - if applicable, after setting a deadline - to rescind the contract (§ 321 of the BGB). The statutory provisions concerning the dispensability of setting deadlines remain unaffected.
§ 6 Retention of Title
(1) Until full payment of all of our current and future claims arising out of the purchase contract and an ongoing business relationship (secured claims), we reserve title to the Goods sold.
(2) The Goods subject to the retention of title may not be pledged to third parties, nor be transferred by way of security, before full payment of the secured claims. The Purchaser is obliged to notify us without undue delay in writing if an application to commence insolvency proceedings is filed or insofar as third-party interventions (e.g. attachments) into the Goods belonging to us occur.
(3) In the event of contract-breaching behaviour by the Purchaser, particularly in the case of non-payment of the purchase price due, we are entitled to rescind the contract and/or demand delivery of the Goods due to the retention of title, pursuant to the statutory provisions. The demand for handover does not simultaneously include declaration of rescission; rather, we are entitled merely to demand handover of the Goods and to reserve the right to rescind. If the Purchaser does not pay the purchase price due, we may only assert these rights if we have first set the Purchaser a reasonable period and this has expired fruitlessly, or if such setting of a period can be dispensed with pursuant to the statutory provisions.
(4) Until revocation pursuant to (c) below, the Purchaser is permitted to sell on and/or to process the Goods which are subject to the retention of title in the ordinary course of business. In such case, the following provisions apply in addition:
(a) The retention of title extends to the products arising through processing, mixing or incorporating our Goods at their full value, in which regard we are deemed to be the manufacturer. If third-party ownership rights remain in existence in the case of a processing, mixing or incorporation with third-party goods, then we acquire co-ownership in the ratio of the invoice values of the processed, mixed or incorporated goods. In addition, the same applies for the product arising as for the Goods supplied subject to retention of title.
(b) Claims against third parties which arise out of the onward sale of the Goods or the product are assigned to us by the Purchaser now as a whole or in the amount of our co-ownership percentage pursuant to the foregoing paragraph, as security. We hereby accept the assignment. The Purchaser’s obligations named in paragraph 2 also apply regarding the assigned claims.
(c) In addition to us, the Purchaser remains empowered to collect the claim. We hereby undertake not to collect the claim as long as the Purchaser complies with its payment obligations to us, there are no defects in its performance capacity, and we do not invoke the right of retention by exercising a right pursuant to paragraph 3. However, if this is the case, then we can demand that the Purchaser disclose to us the claims assigned and their debtors, provide all of the details necessary for collection, hand the associated documents over, and inform the debtors (third parties) about the assignment. Moreover, in such case we are entitled to revoke the Purchaser’s authority regarding the onward sale and processing of the Goods which are subject to our retention of title.
(d) If the realisable value of the securities exceeds our claims by more than 10%, then upon request by the Purchaser, we will release securities in accordance with our choice.
§ 7 Purchaser’s Defect Claims
(1) The statutory provisions apply for the Purchaser’s rights in the event of quality defects and defects in title (including wrong deliveries and insufficient deliveries), insofar as nothing is stipulated in the following to the contrary. In all cases, the statutory special provisions in connection with the end supply of the unprocessed Goods to a consumer remain unaffected (supplier recourse pursuant to § 478 of the BGB), even if that party has further processed them. Claims arising out of supplier recourse are excluded if the defective Goods have been further processed by the Purchaser or another businessperson.
(2) The basis for our defect liability is primarily the agreement entered into concerning the quality of the Goods. Agreement concerning the quality of the Goods is deemed to be comprised of all product descriptions and manufacturer information which are the subject matter of the individual contract or have been made publicly-known by us (particularly in catalogues or on our website) at the time the contract is entered into.
(3) Insofar as the quality was not agreed upon, then an appraisal is to be made pursuant to the statutory rule as to whether there is a defect or not (§ 434 paragraph 1, sentences 2 and 3 of the BGB). However, we assume no liability for public statements by the manufacturer or other third parties (e.g. advertising statements) to which the Purchaser has not referred us as decisive for its purchase.
(4) In principle, we are not liable for defects which the Purchaser is aware or grossly negligently fails to be aware of when entering into the contract (§ 442 of the BGB). Furthermore, the Purchaser’s defect claims require that it have complied with its statutory inspection and complaint obligations (§ 377 and § 381 of the HGB). If a defect is discovered upon delivery, during the inspection or at any subsequent point in time, then we are to be notified of the same in writing without undue delay. In any case, written notice is to be given about obvious defects within 3 working days of delivery, and in the case of defects not identifiable during the inspection, within the same period from the time of discovery. If the Purchaser fails to carry out a proper inspection and/or fails to give due notice of a defect, our liability for the defect which is not notified, not notified in a timely manner, or not duly notified is excluded pursuant to the statutory provisions.
(5) If the item delivered is defective, first we can choose whether we will render subsequent performance by removing the defect (subject improvement) or delivering a flawless item (replacement delivery). Our right to refuse subsequent performance subject to the statutory prerequisites remains unaffected.
(6) We are entitled to make the subsequent performance owed dependent on the Purchaser paying the purchase price due. However, the Purchaser is entitled to retain a portion of the purchase price which is reasonable in relation to the defect.
(7) The Purchaser is obliged to give us the time and opportunity necessary for the subsequent performance owed, particularly to hand over the Goods complained about for the purpose of checking. In the case of replacement delivery, the Purchaser is obliged to return the defective item to us in accordance with the statutory provisions.
(8) The expenditure necessary for the purpose of checking and subsequent performance is borne or reimbursed by us in accordance with the statutory regulation if there is actually a defect. Otherwise, we can demand that the Purchaser reimburse us for the costs which we incur due to the unjustified defect-rectification request, unless the lack of defectiveness was not discernible for the Purchaser.
(9) In urgent cases, e.g. in order to prevent disproportionate damage, the Purchaser has the right to rectify the defect itself and to demand that we compensate it for the expenditure objectively necessary for that purpose. We are to be informed without undue delay, if possible beforehand, about such a rectification by the Purchaser itself. The self-rectification right does not exist if we would be entitled to refuse corresponding subsequent performance in accordance with the statutory provisions.
(10) If subsequent performance has failed, or a reasonable period to be set by the Purchaser for the subsequent performance has expired fruitlessly or can be dispensed with pursuant to the statutory provisions, then the Purchaser can rescind the purchase contract or reduce the purchase price. However, there is no rescission right for an insignificant defect.
(11) For defects too, the Purchaser’s claims for compensation or reimbursement of futile expenditure exist only in accordance with § 8 hereof, and are otherwise hereby excluded.
§ 8 Other Liability
(1) Insofar as nothing to the contrary arises from these GSC, including the following provisions, we are liable pursuant to the statutory provisions for a breach of contractual and non-contractual obligations.
(2) We are liable for compensation – regardless of the legal ground – in the framework of fault-based liability – in the case of intentional behaviour and gross negligence. In the case of simple negligence, we are liable, subject to statutory liability limitations (e.g. duty of care in one’s own matters; insignificant breach of obligation), only
(a) for damage and loss arising out of loss of life, personal injury or damage to health,
(b) for damage and loss arising out of the breach of a fundamental contractual obligation (obligation whose fulfilment is what makes the proper execution of the contract possible at all and on whose compliance the contract partner usually relies and may usually rely); in such case, however, our liability is limited to compensation of the foreseeable damage and loss typically arising.
(3) The limitations of liability arising out of (2) above apply also in relation to third parties as well as with regard to breaches of obligation by people (including in their favour) whose fault we are liable for pursuant to statutory provisions. They do not apply insofar as a defect has been maliciously concealed or a guarantee given regarding the quality of the Goods or for the Purchaser’s claims pursuant to the German Product Liability Act.
(4) The Purchaser can only rescind or terminate due to a breach of obligation which does not consist of a defect if the breach of obligation is attributable to us. A free termination right for the Purchaser (particularly pursuant to § 650 and § 648 of the BGB) is hereby excluded. Otherwise, the statutory prerequisites and legal consequences apply.
§ 9 Time-Barring
(1) In deviation from § 438 paragraph 1, number 3 of the BGB, the general period of limitations for claims arising out of quality defects and defects in title is one year from delivery. Insofar as acceptance is agreed upon, the period of limitations starts to run upon that acceptance.
(2) The foregoing purchase-law periods of limitations apply also for the Purchaser’s contractual and non-contractual compensation claims which are based on a defect in the Goods, unless the application of the usual statutory period of limitations (§ 195 and § 199 of the BGB) would lead in the individual case to a shorter period of limitations. The Purchaser’s compensation claims pursuant to § 8 paragraph 2, sentences 1 and 2 (a) hereof as well as pursuant to the German Product Liability Act shall become time-barred exclusively pursuant to the statutory periods of limitations.
§ 10 Choice of Law and Legal Venue
(1) These GSC and the contract relationship between us and the Purchaser are governed by the law of the Federal Republic of Germany, excluding the application of international uniform law, particularly the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) If the Purchaser is a businessperson in the sense of the German Commercial Code, a public-law legal entity or a public-law special fund, then the exclusive legal venue – including the international one – for all disputes directly or indirectly arising from the contract relationship is Cologne. The same correspondingly applies if the Purchaser is an entrepreneur in the sense of § 14 of the BGB. However, in all cases we are also entitled to file a lawsuit at the place of performance of the delivery obligation pursuant to these GSC or a prevailing individual agreement or at the Purchaser’s general legal venue. Prevailing statutory provisions, particularly regarding exclusive jurisdiction, remain unaffected.