§ 1 Scope
- These terms of sale apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 Paragraph 1 of the German Civil Code. We only recognize conflicting or deviating terms and conditions of the customer if we expressly agree to their validity in writing.
- These terms of sale also apply to all future transactions with the customer, insofar as they are legal transactions of a related nature (as a precaution, the terms of sale should always be attached to the order confirmation).
- In individual cases, individual agreements made with the buyer (including ancillary agreements, additions and changes) always take precedence over these terms of sale. Subject to proof to the contrary, a written contract or our written confirmation is decisive for the content of such agreements.
§ 2 Offer and conclusion of contract
If an order is to be regarded as an offer according to § 145 BGB, we can accept it within two weeks.
§ 3 Documents Provided
All documents provided to the customer in connection with the placing of the order – also in electronic form – such as e.g. B. Calculations, drawings etc., we reserve property rights and copyrights. These documents may not be made accessible to third parties unless we give the customer our express written consent. If we do not accept the customer’s offer within the period of § 2, these documents must be returned to us immediately.
§ 4 Prices and Payment
- Unless otherwise agreed in writing, our prices apply ex works, excluding packaging and plus VAT at the applicable rate. Packaging costs will be charged seperately.
The purchase price must be paid exclusively to the account specified overleaf. The deduction of cash discount is only permissible with a special written agreement.
- Unless otherwise agreed, the purchase price is to be paid within 10 days of delivery (alternatives: “… the purchase price is payable within 21 days of invoicing” or “… the purchase price is payable by – specific date – payable”). Interest on arrears will be charged at a rate of 8% above the respective base interest rate pa (see Appendix 1) . The assertion of a higher damage caused by default remains reserved.
- Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries made 3 months or later after the conclusion of the contract.
§ 5 Rights of Retention
The customer is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 6 Delivery time
- The beginning of the delivery time specified by us presupposes the timely and proper fulfillment of the customer’s obligations. The exception of the unfulfilled contract remains reserved.
- If the customer is in default of acceptance or if he culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage incurred, including any additional expenses. Further claims remain reserved. If the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased item passes to the customer at the point in time at which he is in default of acceptance or debtor.
- In the event of a delay in delivery that is not caused by us intentionally or through gross negligence, we shall be liable for each completed week of delay within the framework of a flat-rate compensation for delay in the amount of 3% of the delivery value, but no more than 15% of the delivery value.
- Further legal claims and rights of the customer due to a delay in delivery remain unaffected.
§ 7 Passing of risk upon dispatch
If the goods are sent to the customer at his request, the risk of accidental loss or accidental deterioration of the goods passes to the customer when the goods are sent to the customer, at the latest when they leave the factory/warehouse. This applies regardless of whether the goods are shipped from the place of performance or who bears the freight costs.
§ 8 Retention of title
- Wir behalten uns das Eigentum an der gelieferten Sache bis zur vollständigen Zahlung sämtlicher Forderungen aus dem Liefervertrag vor. Dies gilt auch für alle zukünftigen Lieferungen, auch wenn wir uns nicht stets ausdrücklich hierauf berufen. Wir sind berechtigt, die Kaufsache zurückzunehmen, wenn der Besteller sich vertragswidrig verhält.
- As long as ownership has not yet passed to him, the customer is obliged to treat the purchased item with care. In particular, he is obliged to insure them at his own expense against theft, fire and water damage at replacement value (note: only permitted for the sale of high-quality goods). If maintenance and inspection work has to be carried out, the customer must carry this out in good time at his own expense. As long as ownership has not yet passed, the customer must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
- The customer is entitled to resell the reserved goods in normal business transactions. The customer assigns to us the claims against the customer from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including value added tax). This assignment applies regardless of whether the purchased item has been resold without or after processing. The customer remains authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended. [Note: This clause does not apply if no extended retention of title is desired.]
- Die Be- und Verarbeitung oder Umbildung der Kaufsache durch den Besteller erfolgt stets Namens und im Auftrag für uns. In diesem Fall setzt sich das Anwartschaftsrecht des Bestellers an der Kaufsache an der umgebildeten Sache fort. Sofern die Kaufsache mit anderen, uns nicht gehörenden Gegenständen verarbeitet wird, erwerben wir das Miteigentum an der neuen Sache im Verhältnis des objektiven Wertes unserer Kaufsache zu den anderen bearbeiteten Gegenständen zur Zeit der Verarbeitung. Dasselbe gilt für den Fall der Vermischung. Sofern die Vermischung in der Weise erfolgt, dass die Sache des Bestellers als Hauptsache anzusehen ist, gilt als vereinbart, dass der Besteller uns anteilmäßig Miteigentum überträgt und das so entstandene Alleineigentum oder Miteigentum für uns verwahrt. Zur Sicherung unserer Forderungen gegen den Besteller tritt der Besteller auch solche Forderungen an uns ab, die ihm durch die Verbindung der Vorbehaltsware mit einem Grundstück gegen einen Dritten erwachsen; wir nehmen diese Abtretung schon jetzt an.
- We undertake to release the securities to which we are entitled at the request of the customer if their value exceeds the claims to be secured by more than 20%.
§ 9 Warranty and notice of defects as well as recourse/manufacturer’s recourse
- The customer’s warranty rights presuppose that he has duly fulfilled his obligations to examine and give notice of defects according to § 377 HGB.
- Claims for defects expire 12 months after the goods delivered by us have been delivered to our customer. The statutory limitation period applies to claims for damages in the event of intent and gross negligence as well as injury to life, body and health, which are based on an intentional or negligent breach of duty by the user. (Note: when selling used goods, the warranty period can be completely excluded with the exception of the claims for damages mentioned in sentence 2).
Insofar as the law according to § 438 Paragraph 1 No. 2 BGB (buildings and objects for buildings), § 445 b BGB (right of recourse) and § 634a Paragraph 1 BGB (construction defects) prescribes longer periods, these periods apply. Prior to returning the goods our permit is to be requested.
- If, despite all due care, the delivered goods show a defect that was already present at the time of the transfer of risk, we will repair the goods at our discretion, subject to timely notification of defects, or deliver replacement goods. We must always be given the opportunity to remedy the defect within a reasonable period of time. Claims for recourse remain unaffected by the above regulation without restriction.
- If the supplementary performance fails, the purchaser can – without prejudice to any claims for damages – withdraw from the contract or reduce the payment.
- Claims for defects do not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable equipment, defective construction work, unsuitable building ground or arise due to special external influences that are not required under the contract. If the customer or third parties carry out improper repair work or changes, there are also no claims for defects for these and the resulting consequences.
- Claims by the customer for the expenses required for the purpose of supplementary performance, in particular transport, travel, labor and material costs, are excluded if the expenses increase because the goods delivered by us were subsequently taken to a location other than the customer’s branch has been made, unless the shipment corresponds to its intended use.
- The customer’s right of recourse against us only exists insofar as the customer has not made any agreements with his customer that go beyond the legally mandatory claims for defects. Paragraph 6 also applies accordingly to the extent of the customer’s right of recourse against the supplier.
§ 10 Miscellaneous
- This contract and the entire legal relationship between the parties are subject to the law of the Federal Republic of Germany to the exclusion of the UN Sales Convention (CISG).
- Place of performance and exclusive place of jurisdiction and for all disputes arising from this contract is our place of business, unless otherwise stated in the order confirmation (note: the use of the clause is not permitted if at least one of the parties is a company not entered in the commercial register)
- All agreements made between the parties for the purpose of executing this contract are set out in writing in this contract.
Although the clause bans of the catalog facts of §§ 308, 309 BGB according to § 310 paragraph 1 BGB do not apply to general terms and conditions that apply to entrepreneurs i. s.d. § 14 BGB are used, it is not automatically to be assumed that the use of clauses such as those mentioned in §§ 308, 309 BGB vis-à-vis entrepreneurs usually withstand the content control of §§ 305 ff. BGB. According to § 307 paragraph 1, 2 no. 1 BGB, which also applies to the use of general terms and conditions towards entrepreneurs, an unreasonable disadvantage of the contractual partner is to be assumed in case of doubt if the clause with essential basic ideas of the legal regulation from which the deviation is not is compatible. According to case law, this leads to the fact that the clause prohibition catalogs of §§ 308,
The clause bans of § 308 BGB are generally transferrable to sales between entrepreneurs, because the commercial peculiarities are taken into account in their scope for evaluation. On the other hand, such a blanket solution is not possible with the prohibitions of § 309 BGB, but the violation of § 309 is also an indication of the invalidity of the clause in the case of sales between entrepreneurs. It is advisable to have a legal expert carry out a case-by-case review before using the GTC.
This requirement means that, in case of doubt, a clause in general terms and conditions is also unreasonably disadvantageous if it is not clear and understandable. This requirement means that non-transparent clauses per se are to be regarded as ineffective without the addition of an unreasonable disadvantage for the contractual partner in terms of content. Furthermore, this also means that the transparency requirement also applies to price determinations and clauses describing services, which are generally exempt from content control.
In the case of purchase and work contracts, the warranty period is 2 years. 6 months for rechargeable batteries/batteries.
Obligation to report defects
In the case of non-obvious defects, the period for notification of defects must not be shorter than one year in the General Terms and Conditions. The start of the period is the statutory start of the limitation period.
Reimbursement of expenses in the case of supplementary performance
Pursuant to Section 439, Paragraph 2 of the German Civil Code, the seller must bear the expenses required for the purpose of supplementary performance (e.g. transport, travel, labor and material costs). This obligation may not be excluded by general terms and conditions.
Limitation on supplementary performance
In the event of a defective item, the buyer can choose to either remedy the defect or deliver a defect-free item as supplementary performance or, if the prerequisites are met, also claim damages. Only if subsequent performance is unsuccessful, not possible or unreasonable can the buyer – secondarily – assert warranty rights: withdrawal or price reduction. Restrictions solely on supplementary performance are ineffective if the other party to the contract is denied the right to a price reduction if the supplementary performance fails.
Limitations of Liability
Any exclusion or limitation of liability for damage resulting from injury to life, limb or health that is based on an intentional or negligent breach of duty by the user or an intentional or negligent breach of duty by a legal representative or vicarious agent of the user is ineffective.
Amount of default interest
From the beginning of the delay, the buyer owes the seller default interest in addition to the purchase price. If a consumer is involved in the purchase contract, either as a buyer or as a seller, the interest rate is 5% above the base rate. In the case of sales contracts between entrepreneurs, the interest rate will be increased to 8% above the base interest rate as a result of the reform of the law of obligations.