General Terms and Conditions of Sale
Status: April 2017
§ 1 General – Scope
(1) Our Terms and Conditions of Sale apply exclusively; we do not recognise any terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our Terms and Conditions of Sale.
(2) All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
(3) Our Terms and Conditions of Sale shall apply both to consumers and to entrepreneurs within the meaning of Section 310 (1) BGB.
§ 2 Offer – Offer documents
(1) Our offers are subject to change and non-binding. Price quotations are non-binding. The conditions and prices valid at the time of the order are decisive.
(2) If the order is to be qualified as an offer in accordance with § 145 BGB, we can accept this within 2 weeks. Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the customer.
(3) We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to such written documents that are labelled “confidential”. The customer requires our express written consent before passing them on to third parties.
§ 3 Prices – Terms of Payment
(1) Unless otherwise stated in the order confirmation, our prices are quoted in EUR “ex works”. In the case of sale by dispatch (§ 5 para. 1), the customer shall bear the transport costs ex works.
(2) Statutory VAT is not included in our prices; it shall be shown separately in the invoice at the statutory rate on the day of invoicing.
(3) The purchase price shall be due and payable within 30 days of invoicing and delivery of the goods, unless another payment period has been agreed in writing.
(4) The statutory provisions regarding the consequences of default in payment shall apply. We reserve the right to assert further claims for damages caused by default. Our claim to commercial maturity interest (§ 353 HGB) against merchants shall remain unaffected.
(5) The customer shall only be entitled to set-off or retention rights insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the customer’s counter-rights shall remain unaffected, in particular in accordance with § 6 para. 3 sentence 2 of these Terms and Conditions of Sale.
§ 4 Delivery period and delay in delivery
(1) The delivery period shall be agreed individually or specified by us upon acceptance of the order.
(2) If we are unable to meet binding delivery periods for reasons for which we are not responsible (non-availability of the service), we shall inform the customer of this immediately and at the same time inform the customer of the expected new delivery period. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the customer. A case of non-availability of the service in this sense is in particular the non-timely self-delivery by our supplier if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in individual cases.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the customer is required.
(4) We shall be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; any fault on the part of our representatives or vicarious agents shall be attributed to us. If the delay in delivery is due to a grossly negligent breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(5) We shall also be liable in accordance with the statutory provisions if the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(6) Otherwise, we shall be liable in the event of a delay in delivery within the scope of a lump-sum compensation for delay (lump-sum compensation). The lump-sum compensation shall amount to a maximum of 5% of the net value of the goods delivered late. We reserve the right to prove that the customer has suffered no damage at all or only significantly less damage than the above lump sum.
(7) Further statutory claims and rights of the customer remain reserved.
§ 5 Delivery, shipping costs, transfer of risk, acceptance, default of acceptance
(1) Delivery is “ex works”, which is also the place of fulfilment. At the customer’s request and expense, the goods will be dispatched to another destination (sale to destination). Unless otherwise agreed, we are entitled to determine the type of dispatch (in particular transport company, dispatch route, packaging) ourselves. For parcel shipments within Germany, we charge a flat-rate shipping fee of EUR 7.50 per order and delivery address.
(2) If the customer is an entrepreneur, we are entitled to make partial deliveries to a reasonable extent.
(3) The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon handover. In the case of sale by despatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the customer upon delivery of the goods to the forwarding agent, carrier or other person or institution designated to carry out the despatch. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply accordingly to an agreed acceptance. If the customer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.
(4) If the customer is in default of acceptance, fails to co-operate or if our delivery is delayed for other reasons for which the customer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this we charge a lump sum compensation in the amount of 0.5% of the delivery value per calendar week, up to a maximum of 10% of the delivery value, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for dispatch. Proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, cancellation) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The customer shall be entitled to prove that we have suffered no loss at all or only a significantly lower loss than the above lump sum.
§ 6 Special conditions for resale
If we supply a customer at the retail level, the goods supplied by us are intended exclusively for sale to end consumers. The passing on of goods by a customer operating at the retail level to a third party for resale is therefore only permitted with our prior consent.
§ 7 Liability for defects
(1) Claims for defects by the customer – if he is a merchant – presuppose that he has properly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 HGB.
(2) If the delivered item is defective, we can – if the customer is a merchant – first choose whether we provide subsequent fulfilment by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). If the customer is a consumer, he may initially demand, at his discretion, either rectification of the defect (repair) or delivery of a defect-free item (replacement delivery). Our right to refuse subsequent fulfilment under the statutory conditions remains unaffected. We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs (not: removal and installation costs), if a defect actually exists. However, if a request by the customer to remedy a defect proves to be unjustified, we may demand reimbursement of the costs incurred from the customer.
(3) We are entitled to make the subsequent fulfilment owed dependent on the customer paying the purchase price due. However, the customer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.
(4) If the subsequent fulfilment fails, the customer shall be entitled, at his discretion, to demand withdrawal or a reduction in price. In the case of an insignificant defect, however, there is no right of withdrawal.
(5) We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of wilful breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(6) We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case too, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(7) Insofar as the customer is otherwise entitled to compensation for the damage instead of performance due to a negligent breach of duty, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(8) Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
(9) Unless otherwise stipulated above, liability is excluded.
(10) If the customer is an entrepreneur, the limitation period for claims for defects is 12 months, calculated from the transfer of risk. This does not apply if the purchased item is normally used for a building and has caused the defect. If the customer is a consumer, the limitation period shall be determined by law.
(11) The limitation period in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected; it is five years, calculated from delivery of the defective item.
§ Section 8 Joint and several liability
(1) Any further liability for damages other than that provided for in Section 6 is excluded, irrespective of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or tortious claims for compensation for property damage in accordance with § 823 BGB.
(2) The limitation according to paragraph (1) also applies if the customer demands compensation for useless expenses instead of a claim for damages.
(3) Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.
§ 9 Securing retention of title
(1) In the case of contracts with consumers, we reserve title to the goods sold until full payment of the claim arising from the purchase contract. If the buyer is an entrepreneur, we reserve title to the goods sold until full payment of all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims). If the customer acts in breach of contract, in particular in the event of default of payment, we shall be entitled to take back the purchased goods. If we take back the purchased item, this shall constitute a cancellation of the contract. After taking back the purchased item, we shall be authorised to sell it; the proceeds from the sale shall be set off against the customer’s liabilities – less reasonable costs of sale.
(2) The customer shall be obliged to treat the purchased item with care.
(3) In the event of seizure or other interventions by third parties, the customer shall notify us immediately in writing so that we can bring an action pursuant to Section 771 of the German Code of Civil Procedure (ZPO). If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
(4) If the customer is an entrepreneur, he shall be entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim which accrue to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer shall remain authorised to collect this claim even after the assignment. Our authorisation to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer fulfils his payment obligations from the collected proceeds, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed and payments have not been suspended. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(5) The processing or transformation of the object of sale by the customer shall always be carried out on our behalf. If the purchased item is processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the purchased item delivered under reservation of title.
(6) If the purchased item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it is agreed that the customer shall transfer co-ownership to us on a pro rata basis. The customer shall keep the resulting sole ownership or co-ownership for us.
(7) We undertake to release the securities to which we are entitled at the customer’s request to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%; we shall be responsible for selecting the securities to be released.
§ 10 Place of jurisdiction – choice of law – place of fulfilment
(1) If the customer is a merchant, our registered office in Nordwalde is the place of jurisdiction; however, we are also entitled to sue the customer at the court of his place of residence.
(2) The law of the Federal Republic of Germany applies; the application of the UN Convention on Contracts for the International Sale of Goods is excluded.
(3) Unless otherwise stated in the order confirmation, our registered office is the place of fulfilment.