General Terms and Conditions of Business
General Terms and Conditions of Purchase
General conditions of sale
General Terms and Conditions of Purchase
1 SCOPE, FORM
- (1) These General Terms and Conditions of Purchase (GTP) shall apply to all business relations with our business partners and suppliers ("Seller"). The AEB shall only apply if the seller is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
- (2) The AEB shall apply in particular to contracts for the sale and/or delivery of movable goods ("Goods"), irrespective of whether the seller manufactures the goods himself or purchases them from suppliers (Sections 433, 651 BGB). Unless otherwise agreed, the AEBs in the version valid at the time of the buyer's order or, in any case, in the version most recently communicated to him in text form, shall apply as a framework agreement also for similar future contracts, without us having to refer to them again in each individual case.
- (3) These AEB shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of Business of the Seller shall only become part of the contract if and insofar as we have expressly agreed to their validity in writing. This consent requirement shall also apply if we accept the seller's deliveries without reservation in the knowledge of the Seller's General Terms and Conditions of Business. If we refer to a letter which contains or refers to the terms and conditions of the seller or third parties, this does not constitute agreement with the validity of those terms and conditions.
- (4) Individual agreements made with the seller in individual cases (including collateral agreements, supplements and amendments) shall take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
- (5) Legally relevant declarations and notifications of the seller in relation to the contract (e.g. setting of a deadline, reminder, withdrawal) must be made in writing or text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the person making the declaration, remain unaffected.
- (6) References to the validity of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GPC.
- The customer is a consumer insofar as the purpose of the services and activities ordered cannot be predominantly attributed to his commercial or independent professional activity. On the other hand, an entrepreneur is any natural or legal person or partnership with legal capacity that acts in the exercise of its commercial or independent professional activity when concluding the contract.
2 CONCLUSION OF CONTRACT
- (1) Our order shall be deemed binding at the earliest upon written submission or confirmation. The seller shall notify us of obvious errors (e.g. typing and calculation errors) and incompleteness of the order including the order documents for the purpose of correction or completion before acceptance; otherwise the contract shall be deemed not to have been concluded.
- (2) The seller is obliged to confirm our order in writing within a period of 2 weeks or, in particular, to execute it without reservation by dispatching the goods (acceptance).
- (3) Receipt of the declaration of acceptance by us shall be decisive for timely acceptance. A delayed acceptance shall be deemed a new offer and requires our acceptance.
3 DELIVERY AND DELAY IN DELIVERY
- (1) The delivery time stated by us in the order is binding. If the delivery time is not stated in the order and has not been agreed otherwise, it shall be 2 weeks from the conclusion of the contract.
- (2) The seller is obliged to inform us immediately in writing of any imminent or actual failure to meet a delivery date, the reasons for such failure and the expected duration of the delay. The occurrence of the delay in delivery shall remain unaffected by this.
- (3) If the seller does not perform his services or does not perform them within the agreed delivery period or if he is in default, our rights - in particular to withdraw from the contract and claim damages - shall be determined in accordance with the statutory provisions. The regulations in paragraph 4 remain unaffected.
- (4) If the seller is in default, we may - in addition to further statutory claims - demand lump-sum compensation for our damage caused by default in the amount of 1 % of the net price per completed calendar week, but not more than a total of 5 % of the net price of the goods delivered late. We reserve the right to prove that higher damages have been incurred. The seller reserves the right to prove that no damage at all or only a significantly lower damage has been incurred.
4 PERFORMANCE, DELIVERY, TRANSFER OF RISK, DEFAULT OF ACCEPTANCE
- (1) Without our prior written consent, the seller shall not be entitled to have the performance owed by him rendered by third parties (e.g. subcontractors). The seller shall bear the procurement risk for his services unless otherwise agreed in individual cases (e.g. limitation to stock).
- (2) The seller is not entitled to make partial deliveries without our prior consent.
- (3) Within Germany, delivery shall be made "free domicile" to the place specified in the order. If the place of destination is not specified and nothing else has been agreed, delivery shall be made to our registered office in Allstedt. The respective destination is also the place of performance for the delivery and any subsequent performance (obligation to be performed at the place of performance).
- (4) The delivery shall be accompanied by a delivery note stating the date (issue and dispatch), the contents of the delivery (article number and quantity) and our order identification (date and number). If the delivery note is missing or incomplete, we are not responsible for any delays in processing and payment resulting from this. Separated from the delivery note, a corresponding dispatch note with the same content must be sent to us.
- (5) The risk of accidental loss and accidental deterioration of the goods shall pass to us upon delivery at the place of performance. If acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly in the case of acceptance. If we are in default of acceptance, this shall be deemed equivalent to handover or acceptance.
- (6) The statutory provisions shall apply to the occurrence of our default of acceptance. However, the seller must also expressly offer us his service if a specific or determinable calendar period has been agreed for an action or cooperation on our part (e.g. provision of material).
- (7) If we are in default of acceptance, the seller shall be entitled to demand compensation for additional expenses in accordance with the statutory provisions (§ 304 BGB). If the contract relates to an unacceptable item to be manufactured by the seller (individual production), the seller shall only be entitled to further rights if we are obliged to cooperate and are responsible for the failure to cooperate.
5 PRICES AND PAYMENT CONDITIONS
- (1) The price stated in the order is binding. All prices include statutory value added tax, unless this is shown separately.
- (2) Unless otherwise agreed in individual cases, the price includes all services and ancillary services provided by the seller (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).
- (3) Insofar as, according to the agreement reached, the price does not include packaging and the remuneration for the packaging - not only provided on loan - is not expressly determined, it shall be charged at the verifiable cost price. At our request, the seller shall take back the packaging at his own expense.
- (4) The agreed price shall be due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If we make payment within 14 calendar days, the seller shall grant us a 3% discount on the net amount of the invoice. In the case of bank transfer, payment shall be deemed to have been made on time if our bank receives our transfer order before the payment deadline; we shall not be responsible for delays caused by the banks involved in the payment process.
- (5) We do not owe any interest on maturity. The statutory provisions shall apply to default of payment.
- (6) We shall be entitled to rights of set-off and retention as well as the defence of non-performance of the contract to the extent permitted by law. In particular, we shall be entitled to withhold due payments as long as we are still entitled to claims against the seller arising from incomplete or defective performance.
- (7) The seller shall only have a right of set-off or retention on the basis of counterclaims that have been determined as legally binding or are undisputed.
6 SECRECY AND RETENTION OF TITLE
- (1) We reserve the property rights and copyrights to all orders, contracts and illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents made available to the seller. Such documents shall be used exclusively for the contractual performance and shall be returned to us after completion of the contract. Copies made by the seller of such documents are to be destroyed; the only exceptions to this are storage within the scope of statutory retention obligations and the storage of data for backup purposes within the scope of the usual data backup. The documents must be kept secret from third parties, even after termination of the contract. The obligation to maintain secrecy shall only expire if and insofar as the knowledge contained in the documents provided has become generally known.
- (2) Tools, devices, templates, strokes, materials and models which we make available to the seller or which are manufactured for contractual purposes and are invoiced to us separately by the seller shall remain our property or shall become our property. They shall be marked by the seller as our property and shall be carefully stored at the seller's expense, adequately secured against damage of any kind (e.g. destruction and loss) and used only for the purposes of the contract. The costs of their maintenance and repair shall be borne by the contracting parties - in the absence of any other agreement - in equal parts. However, insofar as these costs are attributable to defects in such items manufactured by the seller or to improper use by the seller, his employees or other vicarious agents, they shall be borne solely by the seller. The seller shall immediately report to us all not only insignificant damage to these items. Upon request, he shall be obliged to return the objects to us in proper condition if they are no longer required by him to fulfil the contracts concluded with us.
- (3) Any processing, mixing or combination (further processing) of provided objects by the seller shall be carried out for us. The same shall apply if the goods supplied are further processed by us, so that we shall be deemed to be the manufacturer and shall acquire title to the product in accordance with the statutory provisions at the latest when the goods are further processed.
- (4) The transfer of ownership of the goods to us must take place unconditionally and without regard to the payment of the price. If, however, we accept in individual cases an offer of transfer of title from the seller conditional upon payment of the purchase price, the seller's reservation of title shall expire at the latest upon payment of the purchase price for the delivered goods. In the ordinary course of business, we shall remain authorised to resell the goods in advance of payment of the purchase price and to assign the resulting claim in advance (alternatively, simple reservation of title extended to resale). This excludes all other forms of retention of title, in particular the extended, the forwarded and the extended retention of title for further processing.
7 DEFECTIVE DELIVERY AND WARRANTY CLAIMS
- (1) The statutory provisions shall apply to our rights in the event of material defects and defects of title of the goods (including wrong and short delivery as well as improper assembly, defective assembly, operating or operating instructions) and in the event of other breaches of duty by the seller, unless otherwise stipulated below.
- (2) We do not waive warranty claims by accepting or approving samples and specimens submitted.
- (3) In accordance with the statutory provisions, the seller shall be liable in particular for ensuring that the goods have the agreed quality at the time of transfer of risk to us. In any case, those product descriptions which - in particular by designation or reference in our order - are the subject matter of the respective contract or have been included in the contract in the same way as these GPC shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from us, the seller or the manufacturer.
- (4) The seller warrants that the goods are delivered free of third party rights and that no third party rights are infringed by the delivery. In this respect, the seller shall indemnify us against any claims by third parties on first request.
- (5) Notwithstanding § 442 para. 1 sentence 2 of the German Civil Code (BGB), we shall be entitled without restriction to claims for defects even if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence.
- (6) For the commercial duty of inspection and notification of defects, the statutory provisions (§§ 377, 381 HGB) shall apply with the following proviso:
- (a) Our obligation to inspect is limited to defects which are openly apparent during our incoming goods inspection under external examination including the delivery documents (e.g. transport damage, wrong and short delivery) or which are recognisable during our quality control in a random sampling procedure.
- (b) If acceptance has been agreed, there is no obligation to inspect.
- (c) Otherwise, it depends on the extent to which an inspection is feasible in the normal course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later remains unaffected.
- (d) Irrespective of our duty to inspect, our complaint (notification of defects) shall in any case be deemed to be prompt and timely if it is sent within 5 working days of discovery or, in the case of obvious defects, of delivery.
- (7) Subsequent performance shall also include the removal of the defective goods and their reinstallation, provided that the goods have been installed in another item in accordance with their intended purpose. The costs incurred by the seller for the purpose of testing and subsequent performance (including any dismantling and reinstallation costs) shall be borne by the seller even if it turns out that there was actually no defect. Our liability for damages in the event of unjustified requests for the removal of defects shall remain unaffected; however, in this respect we shall only be liable if we have recognised or grossly negligently failed to recognise that there was no defect.
- (8) If the seller does not fulfil his obligation of subsequent performance - at our discretion either by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery) - within a reasonable period of time set by us, we may remedy the defect ourselves and demand reimbursement of the necessary expenses or a corresponding advance payment from the seller. If the subsequent performance by the seller has failed or is unreasonable for us (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline need be set; we shall inform the seller of such circumstances without delay, if possible in advance.
- (9) Otherwise, in the event of a material defect or defect in title, we shall be entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provisions. In addition, we shall be entitled to compensation for damages and expenses in accordance with the statutory provisions.
8 SUPPLIER REGRESS
- (1) In addition to claims for defects, we shall be entitled without restriction to our legally determined rights of recourse within a supply chain (supplier recourse according to §§ 478, 479 BGB). In particular, we are entitled to demand from the seller exactly the type of subsequent performance (repair or replacement) that we owe to our customer in the individual case. Our legal right of choice (§ 439 para. 1 BGB) is not restricted by this.
- (2) Before we acknowledge or fulfil a claim for defects asserted by our customer (including reimbursement of expenses in accordance with §§ 478 para. 2, 439 para. 2 BGB), we shall notify the seller and request a written statement, briefly explaining the facts of the case. If the statement is not made within a reasonable period of time and if no amicable solution is brought about, the claim for defects actually granted by us shall be deemed to be owed to our customer; in this case, the seller shall be responsible for providing counter evidence.
- (3) Our claims arising from supplier recourse shall also apply if the goods have been further processed by us or one of our customers prior to their sale to a consumer, e.g. by installation in another product.
9 PRODUCER LIABILITY
- (1) If the seller is responsible for a product damage, he shall indemnify us from any liability towards third parties or claims of third parties which have arisen through the manufacture, delivery, storage or use of the delivered goods to the extent that the cause lies within his sphere of control and organisation and he himself is liable in the external relationship.
- (2) Within the scope of his obligation to indemnify, the seller shall reimburse expenses pursuant to §§ 683, 670 BGB (German Civil Code) which arise from or in connection with a third-party claim, including recall actions carried out by us. We shall inform the seller - as far as possible and reasonable - about the content and scope of recall measures and give him the opportunity to comment. Further legal claims shall remain unaffected.
- (3) The indemnification and reimbursement obligation shall not apply if the underlying event is demonstrably based on grossly negligent or intentional misconduct by us or one of our employees, representatives, vicarious agents or companies affiliated with us.
- (4) The seller is obliged to take out at his own expense a product liability insurance policy, which, unless otherwise agreed in individual cases, does not have to cover the risk of recall or punitive or similar damages, with a lump-sum coverage of at least EUR 1 million per personal injury or damage to property, and to maintain it for the duration of this contract. Any further claims for damages remain unaffected.
10 INDUSTRIAL PROPERTY RIGHTS
- (1) According to paragraph 2, the seller warrants that the products delivered by him do not infringe any industrial property rights of third parties in countries of the European Union or other countries in which he manufactures the products or has them manufactured.
- (2) The seller shall be obliged to indemnify us against all claims which third parties assert against us on account of the infringement of industrial property rights referred to in paragraph 1 and to reimburse us for all necessary expenses in connection with such claims. This claim shall not exist insofar as the seller proves that he is neither responsible for the infringement of industrial property rights nor should have been aware of it at the time of delivery if he had exercised due commercial care.
- (3) Our further legal claims due to defects of title of the products delivered to us shall remain unaffected.
11 SPARE PARTS
- (1) The seller is obliged to keep spare parts for the products delivered to us for a period of at least 3 years after delivery.
- (2) If the seller intends to discontinue the production of spare parts for the products delivered to us, he shall notify us immediately after the decision on discontinuation. This decision - subject to paragraph 1 - must be at least 6 months before production is discontinued.
- (1) The seller is obliged to keep the conditions of the order and all information and documents (with the exception of publicly accessible information) made available to him for this purpose confidential for a period of 2 years after conclusion of the contract and to use them only for the execution of the order. He shall return them to us immediately upon request after dealing with any enquiries or after completion of orders.
- (2) Without our prior written consent, the seller may not refer to the business relationship in advertising material, brochures, etc. and may not exhibit items manufactured for us.
- (3) The seller shall oblige his subcontractors in accordance with this § 12.
- The seller is not entitled to assign his claims from the contractual relationship to third parties. This does not apply insofar as monetary claims are involved.
14 LIMITATION YEARS
- (1) The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions, unless otherwise provided for below.
- (2) Notwithstanding § 438 (1) No. 3 BGB (German Civil Code), the general limitation period for claims for defects is 3 years from the transfer of risk. If acceptance has been agreed, the limitation period shall commence upon acceptance. The 3-year period of limitation shall apply accordingly to claims arising from defects of title, whereby the statutory period of limitation for third-party claims for surrender in rem (§ 438 para. 1 No. 1 BGB) shall remain unaffected; moreover, claims arising from defects of title shall not be time-barred as long as the third party can still assert the right - in particular in the absence of a limitation period - against us.
- (3) Upon receipt of our written notification of defects by the seller, the limitation of warranty claims shall be suspended until the seller rejects our claims or declares the defect to be remedied or refuses to continue negotiations on our claims. In the case of replacement delivery and rectification of defects, the warranty obligation for replaced and repaired parts shall begin anew, unless we had to assume, based on the behaviour of the seller, that the seller did not feel obliged to take such action, but only carried out the replacement delivery or rectification of defects as a gesture of goodwill or for similar reasons.
- (4) The limitation periods of the right of purchase including the above extension shall apply - to the statutory extent - to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the statutory regular limitation period (§§ 195, 199 BGB) shall apply here, unless the application of the limitation periods of the law of sale leads to a longer limitation period in an individual case.
15 CHOICE OF LAW AND JURISDICTION
- (1) These GPC and the contractual relationship between us and the seller shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Sales Convention.
- (2) If the seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising from the contractual relationship shall be our registered office in Allstedt. The same applies if the buyer is an entrepreneur within the meaning of § 14 BGB. In all cases, however, we shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a prior individual agreement or at the general place of jurisdiction of the seller. Priority statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
- (3) The invalidity of individual provisions of these GPC shall not affect the validity of the remaining provisions. Ineffective provisions shall be deemed to be replaced by such effective provisions that are suitable to realise the economic purpose of the omitted provision as far as possible. The same applies to any loopholes in this contract.
General conditions of sale
1 SCOPE, FORM
- (1) These General Terms and Conditions of Sale (GTC) apply to all our business relations with our customers ("Buyer"). The GCS shall only apply if the Buyer is a business (§ 14 BGB), a legal entity under public law or a special fund under public law.
- (2) The GCSD apply in particular to contracts for the sale and/or delivery of movable goods ("Goods"), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 651 BGB). Unless otherwise agreed, the GCSD in the version valid at the time of the buyer's order or, in any case, in the version most recently communicated to him in text form, shall also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.
- (3) Our AVB apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of Business of the Buyer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer's General Terms and Conditions. If we refer to a letter which contains or refers to business terms and conditions of the buyer or third parties, this does not constitute agreement with the validity of those business terms and conditions.
- (4) Individual agreements made with the buyer in individual cases (including collateral agreements, supplements and amendments) shall take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
- (5) Legally relevant declarations and notifications of the buyer in relation to the contract (e.g. setting of a deadline, notification of defects, withdrawal or reduction) must be made in writing or text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the person making the declaration, remain unaffected.
- (6) References to the validity of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these GTC.
2 CONCLUSION OF CONTRACT
- (1) Our offers are subject to change and non-binding. This shall also apply if we have provided the buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - to which we reserve ownership rights and copyrights.
- (2) The buyer's order of the goods shall be deemed a binding offer to enter into a contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 4 weeks of its receipt by us.
- (3) Acceptance can either be declared in writing (e.g. by order confirmation) or by delivery of the goods to the buyer.
3 DELIVERY PERIOD AND DELAY IN DELIVERY
- (1) The delivery period shall be agreed individually or specified by us when the order is accepted.
- (2) If we are unable to meet binding delivery deadlines for reasons beyond our control (e.g. non-availability of the service), we shall inform the purchaser of this immediately and at the same time inform him of the expected new delivery deadline. 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 reimburse any consideration already provided by the buyer without delay. In particular, the non-availability of the service in this sense is deemed to be the non-timely 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, a reminder from the buyer is required. If we are in default of delivery, the buyer can demand lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5 % of the net price (delivery value) for each completed calendar week of the delay, however, not exceeding a total of 5 % of the delivery value of the goods delivered late. We reserve the right to prove that the buyer did not suffer any damage at all or that the damage was considerably lower than the above lump sum.
- (4) The rights of the buyer in accordance with § 8 of these General Terms and Conditions and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
4 DELIVERY, TRANSFER OF RISK, ACCEPTANCE, DEFAULT OF ACCEPTANCE
- (1) Delivery shall be ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the request and expense of the buyer, the goods shall be shipped to another destination (sale to destination). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
- (2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon delivery. In the case of mail order purchases, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass to the buyer upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. If acceptance has been agreed, this is decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services also apply accordingly to an agreed acceptance. If the buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.
- (3) If the buyer is in default of acceptance, if he omits an act of cooperation 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 (e.g. storage costs). For this we charge a lump-sum compensation amounting to 2% of the net contract sum per calendar day, but not exceeding 10% in the event of final non-acceptance, starting with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for dispatch. In the case of custom-made products at the customer's request and non-acceptance, the compensation amounts to 30% of the net contract sum. The proof of higher damages and our legal claims (in particular compensation for additional expenses, appropriate compensation, termination) remain unaffected. The lump sum shall be set off against further monetary claims. The buyer shall be entitled to prove that we have suffered no damage at all or that the damage we have suffered is considerably less than the above lump sum.
5 PRICES AND PAYMENT CONDITIONS
- (1) Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract shall apply, namely ex warehouse, plus statutory VAT.
- (2) In the case of sale by delivery to a place other than the place of performance (§ 4 para. 1 of these General Terms and Conditions), the buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the buyer. Any customs duties, fees, taxes and other public charges shall be borne by the buyer.
- (3) The purchase price is due and payable within 14 days from the date of invoice and delivery or acceptance of the goods. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation.
- (4) Upon expiry of the above payment period, the buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damages caused by default. Our claim to the commercial due date interest (§ 353 HGB) against merchants remains unaffected.
- (5) The buyer 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 buyer's counter rights shall remain unaffected, in particular in accordance with § 7 para. 6 sentence 2 of these GTC.
- (6) If it becomes apparent after conclusion of the contract (e.g. through an application for the opening of insolvency proceedings) that our claim to the purchase price is endangered by the buyer's inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unacceptable items (custom-made products), we may declare our withdrawal from the contract immediately. The legal regulations regarding the dispensability of setting a deadline remain unaffected.
6 RETENTION OF TITLE
- (1) We reserve title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
- (2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The buyer must inform us immediately in writing if an application is made for the opening of insolvency proceedings or if third parties seize the goods belonging to us (e.g. attachments).
- (3) The buyer shall treat the goods with care, insure them appropriately and, where necessary, maintain them.
- (4) If the buyer acts in breach of contract, in particular if he fails to pay the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the reservation of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and reserve the right to withdraw from the contract. If the buyer does not pay the due purchase price, we may only assert these rights if we have previously set the buyer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.
- (5) Until revocation according to (c) below, the buyer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case the following provisions shall apply in addition.
- (a) Retention of title extends to the full value of the products resulting from the processing, mixing or combination of our goods, whereby we are considered the manufacturer. If a third party's right of ownership remains in effect after processing, mixing or combining with goods of a third party, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same applies to the resulting product as to the goods delivered under reservation of title.
- (b) The buyer hereby assigns to us by way of security all claims against third parties arising from the resale of the goods or the product, either in full or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The obligations of the buyer mentioned in paragraph 2 shall also apply in consideration of the assigned claims.
- (c) In addition to us, the buyer remains authorised to collect the claim. We undertake not to collect the claim as long as the buyer fulfils his payment obligations to us, there is no cessation of payments, there is no defect in his ability to pay (e.g. no application for the opening of insolvency proceedings or similar proceedings has been filed) and we do not assert the reservation of title by exercising a right in accordance with paragraph 4. If this is the case, however, we can demand that the buyer 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. Furthermore, in this case we are entitled to revoke the buyer's authority to further sell and process the goods subject to retention of title.
- (d) If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the request of the buyer.
7 BUYER'S CLAIMS FOR DEFECTS
- (1) The legal regulations apply to the rights of the buyer in the case of material defects and defects of title (including wrong and short delivery as well as improper assembly or faulty assembly instructions), unless otherwise specified below. The statutory special provisions in the case of final delivery of the goods to a consumer (supplier recourse according to §§ 478, 479 BGB) shall remain unaffected.
- (2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. All product descriptions which are the subject of the individual contract or which have been made public by us (in particular in catalogues or on our Internet homepage) are deemed to be an agreement on the quality of the goods. We reserve the right to make changes in construction or form, deviations in colour shade and changes to the scope of delivery during the delivery period. Provided that the object of purchase is not substantially changed and the changes are reasonable for the buyer, such changes or deviations do not constitute a material defect.
- (3) Insofar as the quality has not been agreed upon, the legal regulation shall be applied to determine whether a defect exists or not (§ 434 para. 1 p. 2, p. 3 BGB). However, we do not assume any liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
- (4) The buyer's claims for defects presuppose that he has complied with his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during delivery, inspection or at any later time, we must be notified of this in writing without delay. Obvious defects must be reported in writing within 5 working days of delivery and defects that were not recognisable during proper inspection must be reported in writing within the same period from the time of discovery. If the buyer fails to carry out the proper inspection and/or report defects, our liability for the defect not reported or not reported in time or not properly is excluded according to the statutory provisions.
- (5) If the delivered item is defective, we may initially choose whether we provide subsequent performance by eliminating the defect (rectification) or by delivering a defect-free item (replacement). Our right to refuse subsequent performance under the statutory conditions remains unaffected.
- (6) We are entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
- (7) The buyer shall give us the time and opportunity necessary for the subsequent performance owed. In particular, he must hand over the rejected goods to us for inspection purposes. In the event of a replacement delivery, the buyer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance does not include the removal of the defective item or its reinstallation if we were not originally obliged to install it.
- (8) The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs (not removal and installation costs), shall be borne by us if a defect actually exists. Otherwise, we can demand reimbursement from the buyer for the costs incurred as a result of the unjustified demand for the removal of defects (in particular testing and transport costs), unless the lack of defect was not recognisable to the buyer.
- (9) In urgent cases, e.g. if operational safety is endangered or in order to prevent disproportionate damage, the buyer shall be entitled to remedy the defect himself and to demand reimbursement from us of the expenses objectively required for this purpose. We are to be informed immediately, if possible beforehand, of any such self-remedy. The right of self-remedy does not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
- (10) If the subsequent performance has failed or a reasonable deadline to be set by the Buyer for the subsequent performance has expired without success or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right to withdraw from the contract.
- (11) The buyer's claims for damages or compensation for futile expenses shall exist only in accordance with § 8, even in the case of defects, and shall be excluded in all other respects
- (12) Warranty obligations do not exist if the defect that has occurred is causally connected with the fact that the object of purchase has been improperly handled or overstressed (e.g. in competitions and improper use) or parts have been built into the object of purchase at the instigation of the buyer which have led to the defect that has been notified or if the buyer has not followed the regulations on the handling, maintenance and care of the object of purchase.
8 OTHER LIABILITY
- (1) Insofar as nothing to the contrary results from these GTC including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
- (2) We shall be liable for damages - irrespective of the legal grounds - within the scope of liability for culpability in the case of intent and gross negligence.
- (3) In the case of simple negligence, we shall only be liable subject to a milder standard of liability in accordance with statutory provisions (e.g. for care in our own affairs)
- (a) for damages resulting from injury to life, body or health,
- (b) for damages resulting from the not insignificant breach of a material contractual obligation (obligation whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
- (4) The limitations of liability resulting from paragraphs 2 and 3 shall also apply to breaches of duty by or in favour of persons for whose fault we are responsible under statutory provisions. They shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the buyer under the Product Liability Act.
- (5) If the object of purchase is steered by the buyer or his representative during a test drive before acceptance, the buyer shall be liable for any damage to the object of purchase caused in the process. This does not apply if the buyer is not at fault.
- (6) Due to a breach of duty which does not consist of a defect, the buyer may only withdraw or terminate the contract if we are responsible for the breach of duty. A free right of termination on the part of the Buyer (in particular pursuant to §§ 651, 649 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
- The buyer is not entitled to assign his claims from the contractual relationship to third parties. This does not apply insofar as monetary claims are involved.
10 LIMITATION YEARS
- (1) Notwithstanding § 438 (1) No. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance. Special statutory regulations on the statute of limitations shall remain unaffected (in particular § 438 para. 1 no. 1, para. 1 no. 2, para. 3 BGB, §§ 444, 479 BGB). (2) The aforementioned limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the buyer which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. However, claims for damages of the Buyer pursuant to § 8 para. 2, para. 3 2 (a) of these GCSD and pursuant to the Product Liability Act shall be subject to the statutory limitation periods. § 11 Choice of Law and Place of Jurisdiction (1) The law of the Federal Republic of Germany shall apply to these General Terms and Conditions and the contractual relationship between us and the Buyer, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
- (2) If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered office in Allstedt. The same applies if the buyer is an entrepreneur within the meaning of § 14 BGB. In all cases, however, we shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a prior individual agreement or at the general place of jurisdiction of the buyer. Priority statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
- (3) The invalidity of individual provisions of these AVB shall not affect the validity of the remaining provisions. Ineffective provisions shall be deemed to be replaced by such effective provisions that are suitable to realise the economic purpose of the omitted provision as far as possible. The same applies to any loopholes in this contract.