§ 1 General, Scope (1) The following General Terms and Conditions of Sale (GTCS) apply to all our business relationships with our customers (hereinafter referred to as the "Buyer"). The GTCS shall only apply if the Buyer is an entrepreneur (§ 14 German Civil Code), a legal entity under public law, or a public law special fund. (2) The GTCS particularly apply to contracts for the sale and/or supply of movable goods (hereinafter referred to as "goods"), irrespective of whether we produce the goods ourselves or purchase these from suppliers (§§ 433, 651, German Civil Code). These GTCS shall, in their current version, apply as a framework agreement for future contracts for the sale and/or delivery of the goods with the same Buyer, without us having to refer to them again in each individual case. (3) Our GTCS shall apply exclusively. Any deviating, contradictory, or supplementary general terms and conditions from the Buyer shall only become part of the contract when we have expressly agreed to their validity. This requirement of consent applies in any event, even if we, being aware of the Buyer's general terms and conditions, unreservedly deliver goods. (4) Individual agreements made with the customer in the particular case (including side agreements, supplements and changes) shall always take precedence over these GTCS. A written agreement or our written confirmation is decisive for the content of such agreements. (5) Legally relevant declarations and notifications, which are to be submitted to us by the Buyer after conclusion of the contract (e.g. settings deadlines, notifications of defects, declaration of cancellation or reduction), must be made in writing in order to be valid. (6) Any references to the application of statutory provisions are for the purposes of clarification only. Therefore, the statutory regulations shall also apply without such a clarification insofar as they are not directly changed or expressly excluded in the GTCS.
§ 2 Conclusion of contract (1) Our offers are non-binding and without obligation. This shall apply even if we have supplied the Buyer with catalogs, technical documentation (such as drawings, plans, calculations, costs and references to DIN standards), other product descriptions or documents (including in electronic form) – in which we reserve ownership and copyright. (2) The order of goods by the Buyer shall be considered as a binding contract offer. Unless otherwise stated in the order, we shall be entitled to accept this contract offer within 5 days of its receipt. (3) The acceptance may take place in writing (i.e. by means of a confirmation of order) or by delivering the goods to the Buyer.
§ 3 Delivery deadline and delay in delivery (1) The delivery period shall be agreed upon individually or specified by us upon acceptance of the order. (2) If we cannot observe binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we will inform the Buyer immediately of this and simultaneously inform the Buyer of the expected new delivery deadline. If the service is not available within the new delivery time, we are entitled to withdraw, completely or partially, from the contract. We will then immediately refund any payment made by the Buyer. The unavailability of goods or services in this sense particularly includes our suppliers failing to deliver promptly, when we have entered into a contract of identical coverage. Our legal rights of withdrawal and cancellation and the legal provisions concerning completion of the contract when the obligation to perform is excluded (e.g. impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected. The customer's rights of withdrawal and termination according to § 8 of these GTCS shall also remain unaffected. (3) The event of a delay of delivery is specified according to the statutory provisions. In each case, however, a reminder is required from the Buyer. If our delivery is delayed, the Buyer is entitled to claim a lump-sum compensation for the damages caused by this delay. The lump-sum compensation shall be 0.5% of the net price (delivery value) per complete calendar week of delay, subject to a maximum of 5 % of the contract value of the goods which are delivered late. We reserve the right to prove that the Buyer has suffered no loss at all or only a substantially smaller loss than the above-mentioned lump sum.
§ 4 Delivery, transfer of risk, acceptance, delay in acceptance (1) Delivery is from stock (ex warehouse) and this is also the place of performance. At the request and expense of the Buyer, the goods may be shipped to another destination (sale by dispatch). Unless otherwise agreed, we are entitled to determine the type of shipment (including the carrier, routing and packaging). (2) The risk of accidental loss and accidental deterioration of the goods shall, at the latest, transfer to the Buyer upon the receipt of goods by the Buyer. In the event of a sale by dispatch, the risk of accidental loss or deterioration of the goods transfers upon the delivery of the goods to the carrier, freight forwarder or other person or institution meant to carry out the dispatch. If an acceptance procedure has been agreed on, this is authoritative for the passing of risk. The statutory provisions of the law on contracts for services shall apply correspondingly in other respects to an agreed acceptance. It is deemed equivalent to the handover or acceptance when the Buyer is in default with the acceptance. (3) If the Buyer is in default of acceptance, or if he fails to provide an act of assistance, or if our delivery is delayed for other reason attributable to the Buyer, then we are entitled to compensation for the resulting damage, including additional expenses (such as storage costs). The amount of damage compensation shall depend on the value of the delivery and the space requirements of the goods. The damage compensation is calculated per calendar day, beginning with the delivery deadline, or – in the absence of a delivery deadline – beginning with the notification of readiness for dispatch of the goods. It shall be communicated to the Buyer in writing in the event of delay in acceptance. Proof of a higher damage and our legal claims (especially compensation for additional expenses, reasonable compensation, and termination) shall remain unaffected; the lump sum, however, shall be offset against further monetary claims. The Buyer reserves the right to prove that we did not suffer any damages or only a substantially smaller loss than the above-mentioned lump sum.
§ 5 Prices and payment conditions (1) Unless otherwise agreed for specific cases, our prices current at the time of close of contract (ex warehouse plus the legal VAT) shall apply. (2) In the event of a sale by dispatch (§ 4 Section 1), the Buyer shall pay the cost of transportation from the warehouse and the cost of any transportation insurance that has been requested by the Buyer. Any duties, fees, taxes and other public charges shall be paid by the Buyer. We will not take back the transport packaging (except for pallets) and all other packaging according to the German Packaging Ordinance; they shall become the property of the Buyer. (3) The purchase price shall be due and paid within the time period specified on the order confirmation, and is valid from the invoicing and delivery or acceptance of the goods. (4) The Buyer shall be in default upon expiration of the above-mentioned payment deadline. During a payment delay, the applicable statutory default interest rate shall be added to the purchase price. We reserve the right to claim further damages related to delays. Our claim for commercial maturity interest (§ 353, German Commercial Code) against merchants remains unaffected. (5) The Buyer is only entitled to offset or to exercise any rights of lien or retention to the extent that his claim can be ascertained as legally valid or undisputed. In the event of defects of the delivery, § 7 Section 6 shall remain unaffected. (6) If, after conclusion of the contract, it becomes apparent that our claim for the purchase price is endangered due to the Buyer's ability to pay (e.g. by an application to open insolvency proceedings), then we shall be entitled in accordance with the provisions of law to refuse to perform and – if necessary after fixing a time limit – to withdraw from the contract (§ 321, German Civil Code). In the case of contracts for the manufacture of non-fungible goods (custom-built products), we may withdraw immediately; this shall not affect the legal provisions regarding the expendability of setting a deadline.
§ 6 Retention of title (1) We reserve the right to the property of the sold goods until the full payment of all of our current and future claims from the purchase contract the ongoing business relationship (secured claims) is made. (2) The goods subject to retention of title may neither be pledged to third parties, nor assigned as collateral before the full payment of the secured claims is made. The Buyer must notify us immediately in writing if and when access by third parties is made to the goods belonging to us. (3) If the Buyer acts in breach of contract, particularly in the event of default in payment for the purchase price due, then we shall be entitled under the statutory regulations to withdraw from the contract and to demand the goods on the basis of retention of title. If the Buyer does not pay the purchase price due, we may assert these rights only if we have first set the Buyer an appropriate deadline for payment that has not been met or such a time limit in accordance with statutory provisions is unnecessary. (4) The Buyer is 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 also apply. (a) The retention of title extends to any and all products resulting from the processing, intermingling or joining of our goods at their full value, whereby we shall be considered as the manufacturer. In case of processing, mixing or combining our goods with products of a third party, then we shall acquire co-ownership of the mixed/ combined goods at a rate of the invoiced value. Otherwise, the same applies to the resulting product as applies to the goods delivered under retention of title. (b) The Buyer hereby now and immediately assigns the claims against third parties, which arise from the resale of the goods or products, equal General terms and conditions of sale to the amount of our approximate share of joint ownership pursuant to the aforementioned clause as security. We accept the assigning act of transfer. The obligations of the Buyer, as stated in Section 2, shall also apply in view of the assigned claims. (c) The Buyer shall remain authorised 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, is not in default of payment, no application has been filed for the opening of insolvency proceedings and there is no other deficiency affecting his ability to pay. However, if this is the case we can request that the Buyer informs us of the assigned claims and their debtors, provides all information which is necessary for the collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. If the realizable value of the collateral items exceeds our claims by more than 10%, we shall, upon request of the Buyer, release collateral items of our choice.
§ 7 Warranty claims by the Buyer (1) The statutory regulations shall apply to the rights of the Buyer in case of defects of quality and title (including false delivery, shortfall in delivery as well as improper assembly or faulty assembly instructions), insofar as not otherwise determined below. The special statutory provisions in the final delivery of the goods to a consumer remain unaffected in all cases (supplier has recourse according to § § 478, 479, German Civil Code). (2) The primary basis of our liability for defects shall be the agreement made concerning the quality of the goods. All product descriptions which are subject matter of the Terms and Conditions are considered as an agreement about the quality and nature of the goods, irrespective of whether the product description originates from the Customer order, from the manufacturer or from us. (3) If the condition and quality has not been agreed, the statutory provisions must be applied to assess whether there is a defect or not (§ 434 Section 1 p 2 and 3, German Civil Code). We shall not be held liable, however, for any public statements by the manufacturer or other third parties (e.g. from advertisements). (4) The warranty claims of the Buyer assume that he has complied with his statutory notification obligations (§ § 377, 381, German Commercial Code). In the event that a defect is revealed during the inspection or at a later date, we must be notified in writing without delay. The notification is deemed as immediate if it is made within two weeks, whereby the timely dispatch of the notification will suffice. Irrespective of this obligation for inspection and reporting of complaints, the Buyer must report in writing of obvious defects (including false delivery and shortfall in delivery) within two weeks after delivery. Here also the timely dispatch of the notification will suffice. If the Buyer fails to carry out the proper inspection and/or report of defects, then our liability for the defect which was not reported is excluded. (5) In the case that the delivered item is faulty, then the Buyer may demand either repair of the fault (rectification) or delivery of a non-defective item (replacement). Should the Buyer fail to state which of these two rights he requires, then we reserve the right to set a fair time limit for this. If the Buyer does not make a choice within this time limit, the right of choice transfers to us. (6) We are entitled to make the owed subsequent performance dependent on the fact that the Buyer pays the purchase price due. The Buyer is, however, entitled to retain a part of the purchase price which is reasonable in the ratio to the defect. (7) The Buyer shall allow us the necessary time and opportunity for due subsequent performance and shall, in particular, hand over the goods for testing purposes. In the event of a replacement delivery, the Buyer must return the faulty object to us according to statutory regulations. (8) We will bear the expenses for inspection and supplementary performance, especially the transport, travel, work and material costs when a defect actually exists. If, however, a claim for remedy of defect from the Buyer turns out to be unjustified, we shall claim the costs resulting from this to be refunded by the Buyer. (9) In urgent cases, such as danger to operational safety or in order to prevent excessive damage, the Buyer has the right to remedy the defect himself and the demand reimbursement of the necessary expenses for these efforts. We must be informed about these activities as soon as possible, if possible prior to the repair. The right to self-action does not exist if, according to legal stipulations, we would have been entitled to refuse supplementary performance. (10) If the subsequent performance has failed or a reasonable deadline which is to be set by the Buyer for the subsequent performance has expired, or it is unnecessary according to the statutory regulations, the Buyer can cancel the purchase contract or reduce the purchase price. This right of withdrawal does not exist in regards to an insignificant defect. (11) The Buyer's claims for damages or compensation of fruitless expenses shall only exist according to § 8 and are incidentally excluded.
§ 8 Other Liability (1) Unless provided otherwise in these Terms and Conditions, including the following stipulations, we shall be liable, in accordance with the relevant statutory provisions, in the case of a breach of contractual or non-contractual duties (2) We shall be liable for damages – no matter what the legal grounds – in the event of intent and gross negligence. In case of simple negligence, we shall only be liable for: a) damages arising from health damages or bodily injuries b) damages from the breach of an essential contractual duty (obligation, the satisfaction of which makes the proper execution of the contract possible and on whose observance the contractual partner regularly relies and may rely); in this case our liability is, however, limited to the reimbursement for foreseeable, typically occurring damages (3) The limitations of the liability stated in Section 2 do not apply to the extent that we have fraudulently concealed a defect or have accepted a guarantee for the nature of the goods. The same applies to claims by the Buyer pursuant to the Product Liability Act. 4) The Buyer can only withdraw or terminate because of a breach of duty which is not a defect when we are responsible for the breach of duty. A right of termination of the Buyer (in particular according to § § 651, 649, German Civil Code) is excluded. Otherwise the statutory requirements and legal consequences shall apply.
§ 9 Limitations (1) Notwithstanding § 438 Section 1 No. 3 German Civil Code, the general limitation period for claims arising from defects of quality and title is one year after delivery. If acceptance has been agreed, the period of limitation begins with this acceptance. (2) However, if the goods are a building or an object which has been used as a building in accordance with its normal use and which caused its defectiveness (the building material), then the limitation period is 5 years after delivery in accordance with German civil code (§ 438 Section 1 No. 2 ). The legal special regulations shall remain unaffected for claims for return based upon a property right of a third person (§ 438 Section1 No. 1 German Civil Code), with fraudulent intent by the seller (§ 438 Section 3, German Civil Code) and claims for Suppliers' recourse for delivery to the consumer (§ 479 German Civil Code). (3) The above-mentioned limitation on the sales period shall also apply to contractual and non-contractual claims for damages from the Buyer, when they are based on a defect in the goods, unless the application of the regular statute of limitations (§§ 195, 199, German Civil Code) would result in a shorter limitation period in the individual case. The limitation of the Product Liability Act shall remain unaffected in any case. Otherwise, only the statutory limitation period, according to § 8, is applicable to the Buyer's claims for damages.
§ 10 Applicable law and place of jurisdiction (1)These Terms and Conditions and all legal relationships between ourselves and the Buyer shall be governed by the laws of the Federal Republic of Germany, with the exclusion of all international (contractual) legal systems, in particular the UN law on sales. The requirements and effects of the reservation of title, according to § 6, are, however, subject to the law valid in the corresponding storage location of the object when, under said law, a choice of law made in favour of German law is not permitted or is void. (2) If the Buyer is a merchant within the meaning of the German Commercial Code, legal entity under public law or a public special fund, then the exclusive (also international) place of jurisdiction for all disputes arising from the contractual relationship, directly or indirectly, is our headquarters in Bielefeld, Germany. However, we are also entitled to bring an action at the general legal venue of the Buyer. Status: June 2013