General Terms and Conditions of Sale
§ 1 Area of application, form
(1) These General Terms and Conditions of Sale (GTC) apply to all business relationships
Lüner Weg 32a
Managing Director: Alexander Riebe
Commercial Register: Amtsgericht Lüneburg, HRB 206749
VAT identification number: DE 310526237
with our customers (“buyers”). The GTC apply only if the buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The GTC apply in particular to contracts for the sale and / or delivery of movable property (“goods”), regardless of whether we manufacture the goods ourselves or purchase from suppliers (§§ 433, 651 German Civil Code (BGB)). Unless otherwise agreed, the general terms and conditions in the version valid at the time of the buyer’s order or at least in the version communicated to him in written form (§ 126a BGB) as a framework agreement also apply to similar future contracts, without us having to refer to them again in each individual case.
(3) Our GTC apply exclusively. Differing, conflicting or additional terms and conditions of the buyer shall only become part of the contract, if we have expressly agreed to their validity. This approval requirement applies in any case, for example, even if we carry out the delivery to the buyer unconditionally with knowledge of his terms and conditions.
(4) In single cases, individual agreements with the buyer (including collateral agreements, additions and changes) shall in any case take precedence over these GTC. For the content of such agreements, subject to the contrary evidence, a written contract or our written confirmation shall prevail.
(5) Legally relevant declarations and notifications of the buyer with respect to the contract (for example deadline, notice of defects, cancellation or reduction) must be submitted in written or textual form (e.g. letter, e-mail, fax). Statutory form regulations and further proof, in particular in case of doubt about the legitimacy of the declarant remain unaffected.
(6) References to the validity of statutory provisions are only of clarifying significance. Even without such clarification, the statutory provisions therefore apply unless they are directly amended or expressly excluded in these GTC.
§ 2 Conclusion of contract
(1) Our offers are non-committal and non-binding. This also applies if we have provided the buyer with catalogs, technical documentation (e.g. drawings, plans, calculations, budgeting, references to DIN standards) or other product descriptions or documents – even as digital data or files – where we reserve the rights of ownership and copyrights.
(2) The order of the goods by the buyer is considered a binding contract offer. Unless otherwise stated in the order, we are entitled to accept this contract offer within 2 weeks of its receipt.
(3) The acceptance may be declared either in writing (for example by order confirmation) or by delivery of the goods to the buyer.
§ 3 Time of delivery and delay in delivery
(1) The time of delivery will be agreed between the parties or specified by us when accepting the order.
(2) If we cannot meet binding delivery deadlines for reasons that we are not responsible for (unavailability of the service), we will inform the buyer without delay and at the same time notify the expected new delivery deadline. If the service is not available within the new time of delivery, we are entitled to withdraw from the contract in whole or in part; we will immediately refund any consideration already paid by the buyer. A case of unavailability of the service in this sense is in particular the non-timely self-supply by our supplier, if we have concluded a congruent hedging transaction, neither we nor our suppliers are at fault or we are in individual cases not obliged to procure.
(3) The occurrence of our default of delivery is determined by the statutory provisions. In any case, a reminder from the buyer is required. If we are in default of delivery, the buyer can claim flat compensation for the damage caused by delay. The compensation charge is 0.5% of the net price (delivery value) for each completed week of the delay, but in total not more than 5% of the delivery value of the delayed delivered goods. We reserve the proof that the buyer has incurred no damage or only a much lower damage than the above-mentioned flat compensation.
(4) The rights of the buyer according to § 8 of these GTC and our statutory rights, in particular in the case of an exclusion of the obligation to perform (for example due to impossibility or unreasonableness of the service and / or subsequent performance), remain unaffected.
§ 4 Delivery, transfer of risk, acceptance, delay of acceptance
(1) Delivery is ex warehouse, where the place of fulfillment for the delivery and any subsequent performance is. At the request and expense of the buyer, the goods will be shipped to another destination (consignment purchase). Unless otherwise agreed, we are entitled to determine the nature of the shipment (in particular transport company, shipping route, packaging).
(2) The risk of accidental loss or accidental deterioration shall pass to the customer when the goods which are to be delivered are handed over to the customer. In the case of shipment purchase, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the freight forwarder, the carrier or the person or institution otherwise responsible for carrying out the shipment. If acceptance has been agreed, this is decisive for the transfer of risk. The statutory provisions of the law of manufacturing contracts apply accordingly to an agreed acceptance. If the buyer is in delay of acceptance it is considered as the handing over to the customer or acceptance.
(3) If the buyer is in default of acceptance, fails to cooperate or our delivery is delayed due to reasons the buyer is responsible for, we shall be entitled to demand compensation for the resulting damage including additional expenses (for example storage costs). For this we charge a compensation of 0.5% of the net price (delivery value) per calendar week, but in total not more than 5% of the delivery value, starting with the delivery date or – in the absence of a delivery period – with the notification of readiness for dispatch of the goods and 20% of the net price of the goods we have to deliver (delivery value) at their final non-acceptance.
The possibility to proof a higher damage and our legal claims (in particular compensation for additional expenditure, reasonable compensation, termination) remain unaffected; the lump sum is to be credited to more extensive money claims. The buyer is entitled to prove that we have incurred no or only a significantly lower damage than the above-mentioned flat compensation.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our current prices are valid at the time of the conclusion of the contract, ex warehouse – ex works -, plus statutory sales tax.
(2) In the case of consignment purchase (§ 4 (1)), the buyer has to pay the transport costs ex warehouse and the costs of any transport insurance desired by the buyer. If, in single cases, we do not charge the actual transport costs, a transport charge of EUR 2,000.00 (excluding transport insurance) is agreed. Any duties, fees, taxes and other public charges shall be paid by the buyer.
(3) Unless otherwise agreed, the purchase price is due and payable in the amount of 80% upon conclusion of contract and in the amount of 20% upon notification of readiness. The amounts invoiced to the buyer are due and payable within 14 days from the date of invoicing. Even in the context of an ongoing business relationship we are entitled at any time to carry out a delivery in whole or in part only against advance payment. In this respect we declare a proviso at latest in the order confirmation.
(4) With expiry of the payment period mentioned above, the buyer is in arrears. During arrears the purchase price is subject to interest at the applicable statutory late payment interest rate. We reserve the right to claim further damages caused by delay of payment. In business relationships with merchants our claim to the commercial maturity interest (§ 353 HGB) remains unaffected.
(5) The buyer is entitled to set-off or retention rights only if his claim is legally established or undisputed. In case of defects in the delivery, the counterclaims of the buyer in accordance with. § 7 para. 6 sentence 2 of these GTC shall remain unaffected.
(6) If after conclusion of the contract will be recognizable (e.g. by application for opening insolvency proceedings) that our claim to the purchase price is jeopardized by lack of solvency of the buyer, we are entitled to refuse services and – if necessary after setting a deadline – to withdraw from the contract by statutory provisions (§ 321 BGB). In contracts for the production of irreplaceable items (single custom-made), we can declare withdrawal immediately; statutory provisions concerning the dispensability of setting a deadline remain unaffected.
§ 6 Reservation of Title
(1) Until full payment of all our present and future claims arising from the purchase agreement and an ongoing business relationship (secured claims), we reserve ownership of the goods we sold.
(2) The goods subject to retention of title may not be pledged to third parties or transferred as collateral before full payment of the secured claims. The buyer must notify us immediately in writing if an application for the opening of insolvency proceedings is made or if third party access (for example seizure) takes place on the goods belonging to us.
(3) In case of breach of contract by the buyer, in particular in case of non-payment of the due purchase price, we are entitled to withdraw from the contract according to the statutory provisions and / or to demand the goods on the basis of the retention of title. The demand to return the goods does not at the same time include the explanation of withdrawal; we are rather entitled to demand only the goods and to reserve the right of withdrawal. If the buyer does not pay the due purchase price, we may only assert these rights if we have unsuccessfully set a reasonable deadline for payment to the buyer or if such a deadline is dispensable according to the statutory provisions.
(4) Subject to reservation of title the buyer is authorized until further notice according to below (c) to resell and / or process the goods in the ordinary course of business. In this case, the following provisions additionally apply.
a.) The reservation of title extends to the full value of the products resulting from the processing, mixing or combination of our goods, whereby we are considered as the manufacturer. If the property rights of third parties remain with processing, mixing or combination with goods, we acquire co-ownership in proportion of the invoiced values of the processed, mixed or connected goods. Additionally, the same applies to the resulting product as to the goods delivered under reservation of title.
b.) The buyer hereby assigns to us the claims against third parties arising from the resale of the goods or the product as a whole 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 § 6 sec. (2) also apply with regard to the assigned claims.
c.) The buyer remains authorized to collect the claim alongside to us. We undertake not to collect the claim as long as the buyer meets his payment obligations towards us, the buyer has no lack of capacity and we do not exert a right out of reservation of title according to § 6 sec. (3). In that case, we can demand that the buyer to inform us about the assigned claims and their debtors, to provide all information necessary for collection, to hand over all related documents and to notify the debtors (third parties) of the assignment. Additionally, we are entitled to revoke the buyer’s authority to resell and process the goods subject to reservation of title.
d.) If the realizable value of the securities exceeds our claims by more than 10%, we will, at the request of the buyer, release securities of our choice.
§ 7 Warranty claims of the buyer
(1) For the rights of the buyer in case of material and legal defects (including wrong and less delivery as well as improper installation or faulty assembly instructions), the statutory provisions apply, as far as nothing different is stated below. In all cases the special statutory provisions for final delivery of the unprocessed goods to a consumer, even if he has processed them (supplier recourse acc. §§ 478 BGB) remain unaffected. Claims arising from supplier recourse are excluded if the defective goods were processed by the buyer or another contractor, e.g. by incorporation into another product.
(2) Basis of our warranty for defects is above all the agreement made about the composition of the goods.
(3) Insofar as the composition of goods has not been agreed, the judgement whether or not there is a defect must be done according to the legal regulation (§ 434 (1) Sentence 2 and 3 BGB). However, for public statements of the manufacturer or other third parties (e.g. advertising messages) we assume no liability.
(4) The warranty claims of the buyer require that he has observed his statutory duties for inspection and complaint (§§ 377, 381 HGB). If there is a defect at the time of delivery, the examination or at any later time, we must be notified immediately in writing. In any case, obvious defects must be reported in writing within five working days after delivery and any defects that are not recognizable during the investigation within the same period after discovery. If the buyer fails to examine properly and / or report a defect in time or in a proper manner, our liability under statutory provisions for the defect is excluded.
(5) If the delivered item is defective, first of all we can choose whether we provide supplementary performance by eliminating the defect (rectification) or by delivering a defect-free item (replacement). Our right to refuse supplementary performance under statutory conditions remains unaffected.
(6) We are entitled to wait with the owed supplementary performance until the buyer payed the due purchase price. The buyer is, however, entitled to retain a part of the purchase price which is reasonable in relation to the defect.
(7) The buyer must give us the time and opportunity required for the owed supplementary performance, in particular to hand over the rejected goods for examination purposes. In the case of replacement, the buyer must return the defective item in accordance with statutory regulations. The supplementary performance does not include the removal of the defective item or its reinstallation if we were originally not obliged to install.
(8) The expenses required for the purpose of testing and supplementary performance, in particular transport, travel, labor and material costs as well as any removal and installation costs shall be paid or reimbursed in accordance with the statutory provisions if a defect actually exists. Otherwise, we may demand compensation from the purchaser for costs incurred in connection with the unjustified removal of the defect (in particular inspection and transport costs), unless the lack of defect was not apparent to the buyer.
(9) In urgent cases, e.g. in case of endangerment of operational safety or to avoid disproportionate damage, the buyer has the right to remedy the defect himself and to demand compensation from us for the objectively necessary expenses. We have to be informed immediately of such self-assertion, if possible beforehand. The right to self-assertion does not exist if we according to the statutory provisions were entitled to refuse a corresponding supplementary performance.
(10) If the supplementary performance has failed or if a reasonable period for the supplementary performance set by the buyer has expired without success or is in accordance with statutory provisions dispensable, the buyer may withdraw from the purchase contract or reduce the purchase price. In case of an insignificant defect, however, there is no right of withdrawal.
(11) Buyer’s claims for damages or compensation of wasted expenditure exist in case of defects only in accordance with § 8 and are otherwise excluded.
§ 8 Other liability, exclusion and limitation of the liability
(1) Unless otherwise stated in these GTC including the following provisions, we are liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) We are liable for damages – for whatever legal reason – in the context of fault liability in case of intent and gross negligence. In case of simple negligence, we shall subject to a milder liability standard by law (for example for care of our own affairs) be liable only
a.) for damages resulting from injury to life, body or health,
b.) for damages arising from significant breach of a material contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and on whose observance the contractual partner regularly relies and may rely); in this case our liability is limited to compensation for the foreseeable, typically occurring damage.
(3) The liability restrictions resulting from § 8 sec (2) shall also apply to breaches of duty by or for the benefit of persons whose fault we are responsible for under statutory provisions. They do not apply if we fraudulently concealed a defect or assumed a guarantee for the composition of the goods and for buyer’s claims according to the Product Liability Act.
(4) Due to a breach of duty that does not rely to a defect of the good, the buyer may only withdraw or terminate the contract if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 651, 649 BGB) is excluded. Furthermore, the legal requirements and legal consequences apply.
§ 9 Limitation
(1) Divergent to § 438 sec. (1) no. 3 BGB, the general limitation period for claims arising from material and legal defects is one year beginning with the date of delivery. Insofar as acceptance has been agreed, the period of limitation begins with the acceptance.
(2) If the contractual good is a building or a thing that has been used in accordance with their usual purpose for a building and has caused its defectiveness (building materials), the limitation period is in accordance with the statutory provisions five years beginning with the date of delivery (§ 438 sec. (1) No. 2 BGB).
(3) Further statutory provisions regulating the statute of limitations remain unaffected (especially § 438 sec (1) No. 1, sec (3), §§ 444, 445b BGB).
(4) The above-mentioned limitation periods of the sales law shall also apply to contractual and non-contractual claims for damages of the buyer, based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead in the single cases to a shorter limitation period. Claims for damages of the buyer according to § 8 (2) sentence 1 and sentence 2 (a) of these GTC as well as according to the Product Liability Act are subject to limitation only according to the statutory limitation periods.
§ 10 Contract language, choice of law and jurisdiction
(1) Contract language is German. These conditions are issued in German. For any translation of the terms into another language, in case of doubt the German version shall prevail.
(2) The law of the Federal Republic of Germany, excluding international uniform law, in particular the UN sales law, applies to these GTC and the contractual relationship between us and the buyer.
(3) If the buyer is a merchant in terms of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes including international disputes arising directly or indirectly from the contractual relationship is our registered office in Lüneburg. The same applies if the buyer is an entrepreneur in the sense of § 14 BGB. In accordance with these GTC or a priority individual agreement we are also entitled in all cases to file a claim at the place of performance of the delivery obligation or at the general place of jurisdiction of the buyer. Priority statutory provisions, especially regulating exclusive jurisdictions, remain unaffected.