General Terms and Conditions of sale to entrepreneurs
§ 1 General, Scope of Application
(1) These General Terms and Conditions of Sale (T&C) shall apply to all our business relations with our customers („Buyer“). The T&C shall only apply if the Buyer is an entrepreneur according to §14 of the Bürgerliches Gesetzbuch (German Civil Code, “BGB”), a legal entity under public law or a special fund under public law.
(2) The T&C apply to contracts for the sale and/or delivery of moveable goods („Goods“), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433 BGB). Unless otherwise agreed, these T&C apply in the version valid at the time of the order. The current version can be viewed at any time via the following link: ………………………..
(3) Our T&C apply exclusively. Deviating, conflicting or additional General Terms and Conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly agreed to their application in writing. This consent requirement 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.
(4) Individual agreements made with the Buyer in individual cases (including side agreements, additions and amendments) shall in any case take precedence over these T&C. For the content of such agreements, subject to proof to the contrary, a written contract or our written confirmation is required.
(5) Legally relevant declarations and notifications to be made to us by the Buyer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing to be effective.
(6) References to the applicability of statutory provisions shall only have clarifying meaning. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these T&C.
§ 2 Conclusion of Contract
(1) Our offers are subject to confirmation and non-binding. This shall also apply if we have provided the Buyer with catalogs, technical documentation, other product descriptions or documents – also in electronic form – to which we reserve property rights and copyrights.
(2) The order of the goods by the Buyer shall be deemed to be a binding contract offer. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 8 weeks of its receipt by us.
(3) Acceptance may be declared either in writing (e.g. by issuing an 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 upon acceptance of the order. If this is not the case, the delivery period shall be approx. 26 weeks from order.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (e.g. non-availability of the item, events of force majeure, non-delivery by a supplier, in particular from third countries), we shall inform the Buyer of this without delay and at the same time notify the Buyer 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 immediately refund any payments already paid by the Buyer. The following shall be deemed to be a case of unavailability of the performance in this sense, in particular the non-timely self-delivery by our supplier, if we have concluded a congruent covering transaction and / or neither we nor our supplier are at fault.
(3) The rights of the Buyer pursuant to § 7 of these T&C 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 is ex stock, which is also the place of performance for the delivery and any subsequent performance. At the Buyer’s request and expense, the goods shall be shipped to another destination (sale by dispatch). 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 upon handover at the latest. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the Buyer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. Handover or acceptance shall be deemed to have taken place if the Buyer is in default of acceptance.
(3) If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we shall charge a lump-sum compensation in the amount of 1% of the value of the goods per additional calendar week starting with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for shipment.
(4) The proof of a higher damage and our legal claims (in particular compensation of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be credited against further monetary claims. The Buyer shall be entitled to prove that we have incurred no damage at all or only significantly less damage than the aforementioned lump sum.
(5) It is expressly agreed that §§ 377 of the Handelsgesetzbuch (German Commercial Code, “HGB”) shall apply, even if the Buyer is not a merchant within the meaning of the HGB. The Buyer shall therefore inspect the goods delivered by us immediately after delivery by us or the carrier, insofar as this is feasible in the ordinary course of business, and, if a defect becomes apparent, notify us thereof in writing without delay.
§ 5 Prices and Terms of Payment
(1) Unless otherwise agreed in individual cases, our prices current at the time of the conclusion of the contract shall apply, ex stock or place of storage of the product, plus statutory value added tax at the applicable rate.
(2) In the case of sale by delivery to a place other than the place of performance (§ 4 para. 1), the Buyer shall bear the transport costs ex stock and the costs of any transport insurance requested by the Buyer. Unless we invoice the transport costs actually incurred in the individual case, the costs shall be stated as total costs including delivery (excluding transport insurance) of the goods.
(3) If, in the case of imported goods, there is a significant increase in import costs (e.g. freight, etc.) of more than 10% or in the case of price fluctuations (especially exchange rate fluctuations), we reserve the right to make a corresponding price adjustment against proof. We will inform our customer in writing of any necessary price adjustments and the specific amount of the price adjustment before placing an order with the supplier. The customer is free to accept the price adjustment or, alternatively, to withdraw from the contract. If the customer does not agree to the price adjustment and also does not withdraw from the contract, we may declare withdrawal from the contract on our part. In the event of withdrawal by the Buyer, the statutory provisions shall apply.
(4) The purchase price is due immediately and payable within 10 days from the invoice date and delivery or acceptance of the goods. However, we shall be entitled at any time, also in the context of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
(5) Upon expiration of the aforementioned payment deadline, 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 damage caused by default. With respect to merchants, our claim to the increased rate on default interest (§ 288 para. 2 BGB) shall remain unaffected.
(6) The Buyer shall only be entitled to rights of set-off or retention to the extent that its claim has been legally determined or is undisputed. In the event of defects in the delivery, the Buyer’s counter rights shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these T&C.
(7) If, after conclusion of the contract, it becomes apparent (e.g. by filing for 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 custom-made products, we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
§ 6 Retention of title
(1) We reserve title to the goods sold until all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full (current account reservation).
(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 shall notify us in writing without delay if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the goods belonging to us.
(3) In the event of conduct by the Buyer in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and / or to demand surrender of the goods on the basis of the retention 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 to reserve the right of withdrawal. If the Buyer does not pay the purchase price due, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable under the statutory provisions.
(4) Until revoked in accordance with (c) below, the Buyer shall be entitled 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) The retention of title shall extend to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The Buyer hereby assigns to us all claims against third parties arising from the resale of the goods or the product in total or in the amount of our co-ownership share, if any, in accordance with the foregoing paragraph to us by way of security. We accept the assignment. The obligations of the Buyer stated in paragraph 2 shall also apply in respect of the assigned claims.
(c) The Buyer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the reservation of title by exercising a right pursuant to para. 3. If this is the case, however, we may demand that the Buyer informs us of the assigned claims and their debtors, provide us with all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment. In addition, in this case we shall be entitled to revoke the Buyer’s authorization to further sell and process the goods subject to retention of title.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at Buyer’s request.
§ 7 Claims for defects of the Buyer
(1) The statutory provisions shall apply to the Buyer’s rights in the event of material defects and defects of title (including incorrect or incomplete delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the goods to a consumer (supplier recourse pursuant to §§ 478, 479 BGB).
(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 subject of the individual contract shall be deemed to be an agreement on the quality of the goods; it shall make no difference in this respect whether the product description originates from the Buyer, the manufacturer or us. Any assembly instructions that may be provided by us are to be understood as a reference only and are expressly not part of the contract. We expressly assume no liability for the correctness and / or completeness of the assembly instructions. Liability for faulty assembly by the customer or a third party is expressly excluded.
(3) Insofar as the quality has not been agreed upon, it is to be judged according to the legal provision whether there is a defect or not (§ 434 Abs. 1 S. 2 und 3 BGB). However, we shall not be liable for public statements made by the manufacturer or other third parties (e.g. advertising statements).
(4) The Buyer’s claims for defects shall be subject to the condition that he has complied with his statutory obligations to examine the goods and to give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during the inspection or later, we must be notified thereof in writing without delay. The notification shall be deemed to have been made without delay if it is made within two weeks, whereby timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the Buyer shall notify us in writing of any obvious defects (including incorrect and short deliveries) within two weeks of delivery, whereby timely dispatch of the notification shall also suffice to meet the deadline. If the Buyer fails to duly inspect and/or notify the defect, our liability for the non-notified defect shall be excluded.
(5) If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
(6) We shall be 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 part of the purchase price which is reasonable in relation to the defect.
(7) The Buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about 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. The subsequent performance does not include the removal of the defective item or the re-installation if we were not originally obliged to install it.
(8) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs (not: removal and installation costs), if there is actually a defect. Otherwise, we shall be entitled to demand reimbursement from the Buyer of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the Buyer.
(9) In urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, the Buyer shall have the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be informed immediately of such a self-remedy, if possible, in advance. The right of self-execution shall not apply 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 if a reasonable period to be set by the Buyer for the subsequent performance has expired unsuccessfully 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 shall be no right of withdrawal.
(11) Claims of the Buyer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with § 8 and shall otherwise be excluded.
§ 8 Other liability
(1) Unless otherwise provided in these T&C including the following provisions, we shall be liable for any breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) We shall be liable for damages – irrespective of the legal grounds – within the scope of fault-based liability in the event of intent and gross negligence. In the event of slight negligence, we shall be liable, subject to a milder standard of liability in accordance with statutory provisions (e.g. for diligence in our own affairs) only
a) for damages resulting from injury to life, body or health,
b) for damages arising from the not inconsiderable breach of a material contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and the
and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from para. 2 shall also apply in the event of breaches of duty by or for the benefit of persons for whose fault we are responsible in accordance with statutory provisions. They shall not apply insofar as 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 German Product Liability Act.
(4) Due to a breach of duty that does not consist of a defect, the Buyer may only withdraw from or terminate the contract if we are responsible for the breach of duty. Otherwise, the statutory requirements and legal consequences shall apply.
§ 9 Statute of Limitations
(1) Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) If, however, the goods are a building or an object which has been used for a building in accordance with its customary manner of use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (§ 438 para. 1 no. 2 BGB). Other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 479 BGB) shall also remain unaffected.
(3) The above limitation periods of the purchase law 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 German Civil Code) would lead to a shorter limitation period in the individual case. However, claims for damages by the Buyer pursuant to § 8 para. 2 sentence 1 and sentence 2 (a) as well as pursuant to the German Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
§ 10 Choice of Law and Place of Jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these T&C and the contractual relationship between us and the Buyer to the exclusion of 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 HGB, 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 shall be our registered office in 49808 Lingen (Ems). The same shall apply if the Buyer is an entrepreneur within the meaning of § 14 BGB. However, we shall also be entitled in all cases to file a lawsuit at the place of performance of the delivery obligation in accordance with these T&C or a prior individual agreement or at the general place of jurisdiction of the Buyer. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
(3) Should individual provisions of this contract be invalid or contradict the statutory provisions, this shall not affect the remainder of the contract.