General – Territorial application
- Our Terms of Sale apply exclusively, we do not accept customer conditions that are contrary to or divergent from our Terms of Sale unless we have expressly agreed to their application in writing. Our Terms of Sale also apply if we unconditionally carry out the delivery to the customer while aware of customer conditions that are contrary to or divergent from our Terms of Sale.
- This Contract records in writing all agreements that have been made between us and the customer with respect to the carrying out of this contract.
- Our Terms of Sale only apply to business persons, legal persons under public law and special funds under public law within the meaning of § 310 para. 1 BGB (Buergerliches Gesetzbuch – German Civil Code).
Offer – Offer documentation
- If the order is to be classified as an offer in accordance with § 145 BGB then we can accept it within two weeks.
- We reserve our proprietary rights and copyright over images, drawings, calculations and other documents. This also applies to those written documents that are designated „confidential“. The customer requires our express written consent before giving these to third parties.
Prices – Terms of Payment
- To the extent that nothing to the contrary is contained in the confirmation of the order, our prices apply “ex factory”, excluding packaging; this will be charged for separately.
- Our prices do not include value-added tax; this will be separately itemised in the invoice at the statutory level that applies on the day of invoicing.
- The deduction of a discount requires separate written agreement.
- To the extent that nothing to the contrary is contained in the confirmation of the order, the net purchase price (without deduction) is due and payable within 30 days of the date of the invoice. The statutory provisions regarding the consequences of late payment apply.
- The customer only has a right of set-off if the amount the customer wishes to set off has been legally determined, is not in dispute or has been recognised by us. Furthermore, the customer is authorised to exercise its right of retention to the extent that its claim is based on the same contractual relationship.
Time for delivery
- The period for delivery stated by us only starts once all technical questions have been settled.
- Compliance with our delivery obligations is further conditional upon the timely and due and proper satisfaction of the customer’s obligations. We reserve the right to plead non-performance of the Contract.
- If the customer defaults in acceptance or unreasonably breaches other obligations of cooperation, then we are entitled to demand damages to the extent arising from such default including any additional costs. We reserve our rights with respect to additional claims or rights.
- If the pre-requisites in sub-paragraph (3) are met, then the customer bears the risk of any demise or deterioration of the items purchased from the time that the customer is in default of acceptance or payment.
- We are liable in accordance with the statutory provisions to the extent that the underlying contract of purchase is a fixed order within the meaning of § 286 para. 2 no. 4 BGB or § 376 HGB (Handelsgesezbuch – German Commercial Code). We are also liable in accordance with the statutory provisions if the result of a delay in delivery to the customer for which we are responsible is that the customer is entitled to claim that it has no further interest in performance of the contract.
- We are further liable in accordance with the statutory provisions to the extent that the delay in delivery is due to our intentional or grossly negligent breach of contract; acts of our representatives or agents are attributable to us. To the extent that the delay in delivery is due to our grossly negligent breach of contract, our liability for damages is limited to those damages that are foreseeable and that typically arise.
- We are also liable in accordance with the statutory provisions to the extent that a delay in delivery for which we are responsible is due to our breach of a material term of the contract; however in this case our liability for damages is limited to those damages that are foreseeable and that typically arise.
- Further statutory claims and rights of the customer due to a delay in delivery remain unaffected.
Transfer of risk – Packaging costs
- To the extent that nothing to the contrary is contained in the confirmation of the order, the delivery is agreed to be “ex factory”.
- Separate agreements apply with respect to accepting the return of packaging.
- If the customer requests it, we will procure transport insurance for the delivery; the customer bears any costs in that regard.
Liability for defects
- The customer must have duly and properly complied with its obligations of examination and complaint under § 377 HGB before it can make a claim for defects.
- If there is a defect in the purchased item, the customer is entitled to supplementary performance in the form of, at its election, removal of the defect or delivery of a new, defect-free item. In the event of defect removal or replacement delivery we are obliged to bear all costs of the supplementary performance including transport, travel, employment and material costs, provided that these costs are not increased because the purchased item has been moved to a different location than the place for performance.
- If the supplementary performance fails, then the customer is at its election entitled to demand either rescission or a reduction in the price.
- We are liable in accordance with the statutory provisions if the customer claims compensation based on intention or gross negligence, including intention or gross negligence on the part of our representatives or agents. If we are not accused of intentionally breaching the contract, then the liability for compensation is limited to those damages that are foreseeable and that typically arise.
- We are liable in accordance with the statutory provisions to the extent that we are responsible for breaching a material term of the contract; however in this event as well the liability for compensation is limited to those damages that are foreseeable and that typically arise.
- To the extent that the customer otherwise has a claim to damages rather than performance of the contract due to a negligent breach of contract, our liability is limited to those damages that are foreseeable and that typically arise.
- Our liability for personal injury remains unaffected, as does our mandatory liability under the Product Liability Act.
- To the extent that nothing to the contrary is contained in the above provisions, our liability is excluded.
- The limitation period for defects claims is 24 months, calculated from the date of transfer of risk. This does not apply if the purchased item is typically used in construction and caused the defect.
- The limitation period in the event of recourse against the supplier under §§ 478, 479 BGB remains unaffected; it is five years, calculated from delivery of the defective item.
- There is no further liability for damages than that set out in § 6 – regardless of the legal nature of the claim made. This applies in particular to claims for compensation due to pre-contractual liability, due to other breaches of duty or due to claims for compensation for property damage under § 823 BGB.
- The limitation under subparagraph (1) also applies, if the customer, rather than damages, demands compensation for costs thrown away instead of performance.
- If our liability for compensation is excluded or limited, then this also applies with respect to the personal liability of our appointees, employees, staff, representatives and agents.
Retention of title
- We retain title in the purchased item until receipt of all payments under the delivery contract. If the customer is in breach of contract, particularly if the customer is late in payment, we are entitled to take back the purchased item. If we take back the purchased item then this is a rescission of the contract. Once we have taken back the purchased item we are entitled to sell it, the proceeds of sale are to be set off against the customer’s liability – less the reasonable costs of sale.
- The customer is obliged to treat the purchased item with care; in particular the customer is, at its cost, obliged to take out sufficient insurance for the purchased item for its replacement cost against damage from fire, water and theft. If maintenance and inspection work is required, the customer must carry this out in a timely manner at its own cost.
- In the event of seizure or other intervention by a third party, the customer must notify us in writing without delay, so that we can issue a lawsuit under § 771 ZPO (Zivilprozessordnung – German Code of Civil Procedure). If the third party is not able to reimburse us for the court and out-of-court costs of a lawsuit in accordance with § 771 ZPO, then the customer is liable for the shortfall borne by us.
- The customer is entitled to sell the purchased item in the ordinary course of business; however it assigns to us all amounts payable up to the amount invoiced by us (including VAT) that accrue to it from the sale to its purchaser or third party and indeed regardless of whether the purchased item has been sold without or following processing. The customer remains authorised to recover this debt notwithstanding the assignment. This does not affect our authority to recover the debt ourselves. However, we undertake not to recover the debt so long as the customer complies with its payment obligations from the proceeds collected, does not default in payment and in particular no application for the opening of insolvency or recovery proceedings is made and there is no suspension of payments. If, however, this is the case then we can demand that the customer informs us of the amounts payable and the debtor assigned to us, makes all statements necessary for recovery, hands over the relevant documents and informs the debtor (third party) of the assignment.
- The processing or restructuring of the purchased item by the customer is always undertaken for us. If the purchased item is processed with other objects that do not belong to us, then we acquire co-ownership of the new item in the same proportion that the value of the purchased item (invoiced amount, including VAT) bears to the other processed objects at the time of the processing. Otherwise, the same applies to the item arising from the processing as applies to the purchased item delivered with retention of title.
- If the purchased item is inseparably mixed with other objects that do not belong to us, then we acquire co-ownership of the new item in the same proportion that the value of the purchased item (invoiced amount, including VAT) bears to the other mixed objects at the time of the mixing. If the mixing occurs such that the customer’s item is the main item then it is deemed agreed that the customer assigns to us co-ownership as to part. The customer holds the sole ownership or co-ownership so arising for us.
- The customer also assigns to us by way of security for the amounts payable to us, any claims arising against a third party due to the fixing of the purchased item to land.
- We undertake to release the securities to which we are entitled at the customer’s demand to the extent that the realisable value of our securities exceeds the liabilities to be secured by more than 10%; we must choose which securities to release.
Court of jurisdiction – place for performance
- If the customer is a business person, legal person under public law or special fund under public law, then the court with jurisdiction is the court with jurisdiction where our place of business is located; however we are also entitled to sue the customer in the court with jurisdiction over the customer’s place of residence.
- The law of the Federal Republic of Germany applies. The provisions of the UN law on the sale of goods are however expressly excluded.
- To the extent that nothing to the contrary is contained in the confirmation of the order, our place of business is the place for performance of the contract.