General Terms and Conditions
1. Scope of Application
a. The following terms and conditions of delivery and payment shall apply exclusively to all business relations with our customers who are entrepreneurs, legal entities under public law or special funds under public law.The Buyer acknowledges these terms as binding for the present contract and also for all future transactions, even if they are not expressly agreed again in the future. Any deviating agreement shall require our written confirmation.
b. The Buyer shall not assert any of its own purchasing conditions. Deviating, conflicting or supplementary general terms and conditions of the Buyer or third parties shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement of consent shall apply in all cases, for example even if we (hereinafter referred to as the “Seller”) carry out delivery to the Buyer without reservation in knowledge of the Buyer’s terms and conditions or by remaining silent.
c. Individual agreements made with the Buyer in individual cases (including ancillary agreements, amendments and modifications) shall in any case take precedence over these General Terms and Conditions. The content of such agreements shall be governed by a written contract or written confirmation by the Seller.
d. Declarations and notifications of legal relevance to be submitted by the Buyer to us after conclusion of the contract (e.g. setting of deadlines, notices of defects, declarations of withdrawal or reduction) shall require written form in order to be effective.
e. References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these General Terms and Conditions.
2. Conclusion of Contract
a. All offers made by the Seller are subject to change and non-binding.
b. The Buyer’s order of the goods shall constitute a binding contractual offer. Unless otherwise stated in the order, the Seller shall be entitled to accept this contractual offer within fourteen days of its receipt by us.
c. Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.
d. The contractually owed performance shall be defined exclusively on the basis of the individual sample parts. Minor deviations, in particular customary commercial deviations in quality, colour, design, equipment or workmanship, shall remain reserved within reasonable limits; such deviations shall form part of the agreed quality of the goods. No guarantees in the legal sense are granted by us.
3. Prices and Payment
a. All price quotations, including those in the order confirmation, are subject to change and non-binding. Unless otherwise agreed in individual cases, deliveries shall be made at the prices valid at the time of delivery plus statutory value-added tax.
b. Invoice amounts (domestic) shall be payable within thirty days without any deduction, unless otherwise agreed in writing. Invoices (foreign) shall be paid either in advance or immediately upon receipt of the goods.
The date of receipt by the Seller shall be decisive for payment. Cheques shall only be deemed payment upon clearance. Payments shall always be credited to the oldest invoice, irrespective of any designation at the time of payment. If the Buyer fails to make payment when due, the outstanding amounts shall bear interest at 5% p.a. from the due date; the assertion of higher interest and further damages in the event of default shall remain unaffected.
In the case of unknown Buyers or Buyers whose creditworthiness is not known to the Seller, delivery shall be made against advance payment or cash on delivery. In the event of payment default or exceeding the credit limit, the Seller also reserves the right to withhold deliveries (i.e. credit hold) until all claims have been settled. Collection of goods shall generally only take place after prior telephone arrangement against cash payment. Post-dated cheques shall only be accepted for payment upon special written agreement concluded in advance. Bank charges, discount charges and collection fees shall be borne by the Buyer. If the Buyer fails to meet its payment obligations, the entire remaining debt plus all reminder costs, default interest and legal enforcement costs shall become immediately due for payment. In such cases, the Seller shall be entitled to declare withdrawal from all contracts and to reclaim goods already delivered subject to retention of title, as well as to demand reimbursement of all costs causally related to the withdrawal.
c. Set-off against counterclaims of the Buyer or retention of payments due to such claims shall only be permissible insofar as the counterclaims are undisputed or have been legally established.
d. The Seller shall be entitled to perform outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, circumstances become known which are likely to substantially reduce the creditworthiness of the Buyer and thereby jeopardise payment of the Seller’s outstanding claims arising from the respective contractual relationship (including from other individual orders governed by the same framework agreement).
e. If, after conclusion of the contract, it becomes apparent that the Seller’s claim for the purchase price is endangered due to the Buyer’s lack of ability to perform (e.g. by application for the opening of insolvency proceedings), the Seller shall be entitled to refuse performance and – if applicable after setting a deadline – to withdraw from the contract in accordance with statutory provisions (§ 321 German Civil Code)
4. Delivery Time
a. The Buyer is aware that the Seller is not the manufacturer of the goods offered.
Delivery periods and dates stated by the Seller are always approximate unless a fixed period or fixed date has been expressly promised or agreed. If shipment has been agreed, delivery periods and dates shall refer to the time of handover to the freight forwarder, carrier or other third party commissioned with transport.
b. The Seller may – without prejudice to its rights arising from default of the Buyer – demand from the Buyer an extension of delivery and performance periods or a postponement of delivery and performance dates for the period during which the Buyer fails to fulfil its contractual obligations towards the Seller.
c. The Seller shall not be liable for impossibility of delivery or delivery delays insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in procurement of materials or energy, transport delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, difficulties in obtaining necessary official permits, official measures or failure by suppliers to deliver correctly or on time) for which the Seller is not responsible. If such events significantly impede or render delivery or performance impossible and the impediment is not merely temporary, the Seller shall be entitled to withdraw from the contract. Any consideration already provided by the Buyer shall be refunded immediately. In the case of temporary impediments, delivery or performance periods shall be extended or delivery or performance dates postponed by the duration of the impediment plus a reasonable start-up period. If acceptance of the delivery or performance is unreasonable for the Buyer as a result of the delay, the Buyer may withdraw from the contract by immediate written declaration to the Seller.
d. In the case of stock goods, the Seller reserves the right of intermediate sale. In the event of a delivery delay not attributable to the Seller due to unforeseeable events, the delivery period shall be reasonably extended.
e. If the Seller is in default of delivery or performance, or if delivery or performance becomes impossible for any reason whatsoever, the Seller’s liability for damages shall be limited in accordance with Clause 11 of these General Terms and Conditions.
f. In the case of Kanban contracts and in connection with special arrangements for call-off orders, our internal code “88 = call-off” shall be used instead of indicating the calendar week. If it is not yet possible for us to specify a delivery date at the time of order confirmation, “TO FOLLOW” shall appear instead of the calendar week.
5. Delivery and Transfer of Risk
a. Delivery shall be made ex works, which shall also be the place of performance. At the Buyer’s request and expense, the goods shall be shipped to another destination. Unless otherwise agreed, the Seller shall be entitled to determine the mode of shipment (in particular transport company, shipping route and packaging).
Shipping and packaging costs shall be charged according to expenditure and invoiced to the Buyer. In the case of electronic and electromechanical components, the Seller shall be entitled to deliver excess or short quantities if, for reasons of quality or transport safety, only full packaging units can be delivered. Customary partial deliveries are permissible and do not constitute a defect or breach of duty.
b. The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest upon handover (with the start of the loading process being decisive). In the case of shipment, the risk of accidental loss and deterioration of the goods as well as the risk of delay shall pass upon delivery of the goods to the freight forwarder, carrier or other person or institution designated to carry out the shipment. This shall also apply if partial deliveries are made or if the Seller has assumed other services such as shipping or installation.
If acceptance has been agreed, acceptance shall be decisive for the transfer of risk. In all other respects, the statutory provisions of contract for work and services law shall apply mutatis mutandis to agreed acceptance. Handover or acceptance shall be deemed to have taken place if the Buyer is in default of acceptance.
c. If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons attributable to the Buyer, the Seller shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, the Seller shall charge a flat-rate compensation of 0.5% of the invoice amount per calendar day, starting from the delivery period or – in the absence of a delivery period – from notification of readiness for shipment, but not exceeding 5%. Proof of higher damage and the Seller’s statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the flat-rate compensation shall be offset against further monetary claims. The Buyer shall be permitted to prove that no damage or significantly lower damage than the flat-rate amount has occurred.
6. Call-Off Orders
Unless otherwise agreed, call-off orders must be completed within 12 months. If a call-off order is not called off and delivered in whole or in part within 12 months, the Seller shall be entitled to deliver the (remaining) quantity to the Buyer without prior notice. If, based on a special agreement, a call-off order is delivered later than 12 months, the Seller reserves the right to adjust prices. Call-off orders may not be reduced or cancelled without the Seller’s express written consent. Deviating terms of the Buyer shall only bind the Seller if expressly acknowledged.
7. Retention of Title
a. The Seller retains title to the sold goods until full payment of all current and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
b. Goods subject to retention of title may neither be pledged nor transferred by way of security to third parties before full payment of the secured claims. The Buyer must notify us immediately in writing if third parties access the goods belonging to us.
c. In the event of breach of contract by the Buyer, in particular non-payment of the purchase price due, the Seller shall be entitled to withdraw from the contract in accordance with statutory provisions and to demand return of the goods on the basis of retention of title and withdrawal. If the Buyer fails to pay the purchase price due, the Seller may only assert these rights if the Seller has previously unsuccessfully set a reasonable deadline for payment or if such deadline is dispensable under statutory provisions.
d. The Buyer shall be 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:
aa. The retention of title shall extend to the products resulting from processing, mixing or combining the Seller’s goods to their full value, with the Seller deemed to be the manufacturer. If ownership rights of third parties remain in the case of processing, mixing or combining with third-party goods, the Seller 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 subject to retention of title.
bb. The Buyer hereby assigns to the Seller, by way of security, all claims against third parties arising from the resale of the goods or the product, in full or in the amount of the Seller’s co-ownership share in accordance with the preceding paragraph. The Seller accepts the assignment. The Buyer’s obligations stated in Clause b shall also apply with regard to the assigned claims.
cc. The Buyer shall remain authorised to collect the claims alongside the Seller. The Seller undertakes not to collect the claim as long as the Buyer meets its payment obligations, is not in default, no application for insolvency proceedings has been filed and no other deficiency in its ability to perform exists. If this is the case, however, the Seller may require the Buyer to disclose the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and notify the debtors (third parties) of the assignment.
dd. If the realisable value of the securities exceeds the Seller’s claims by more than 10%, the Seller shall release securities of its choice at the Buyer’s request.
8. Warranty and Complaints
a. The statutory provisions shall apply to the Buyer’s rights in the event of defects in quality and title (including incorrect or short delivery as well as improper installation or defective installation instructions), unless otherwise provided below. Statutory special provisions in the event of final delivery of the goods to a consumer (supplier recourse pursuant to §§ 478, 479 German Civil Code) shall remain unaffected.
b. The warranty period shall be one year from delivery or, where acceptance is required, from acceptance.
c. The delivered items must be carefully inspected immediately after delivery to the Buyer or to a third party designated by the Buyer. With regard to obvious defects or other defects that would have been recognisable upon immediate and careful inspection, the goods shall be deemed approved by the Buyer if no written notice of defect is received by the Seller within seven working days of delivery.
With regard to other defects, the goods shall be deemed approved if the notice of defect is not received by the Seller within seven working days of the time at which the defect became apparent; if the defect was already recognisable at an earlier time during normal use, this earlier time shall be decisive for the commencement of the notice period.
At the Seller’s request, a defective delivery item must be returned to the Seller free of charge. In the event of a justified complaint, the Seller shall reimburse the costs of the most economical shipping route; this shall not apply if costs increase because the delivery item is located at a place other than the place of intended use.
d. In the event of material defects, the Seller shall be obliged and entitled, at its discretion within a reasonable period, to remedy the defect or deliver a replacement. If subsequent performance fails, i.e. is impossible, unreasonable, refused or unreasonably delayed, the Buyer may withdraw from the contract or reduce the purchase price accordingly.
e. If a defect is attributable to the Seller’s fault, the Buyer may claim damages subject to the conditions specified in Clause 10.
f. In the case of defects in components manufactured by other manufacturers which the Seller cannot remedy for licensing or factual reasons, the Seller shall, at its discretion, assert its warranty claims against the manufacturers or suppliers on behalf of the Buyer or assign them to the Buyer. Warranty claims against the Seller shall only exist under the other conditions and in accordance with these General Terms and Conditions if judicial enforcement of the aforementioned claims against the manufacturer or supplier has been unsuccessful or is futile, for example due to insolvency. During the duration of the legal dispute, the limitation period for the Buyer’s warranty claims against the Seller shall be suspended.
g. Warranty shall lapse if the Buyer modifies the delivery item without the Seller’s consent or has it modified by third parties and defect remediation is thereby rendered impossible or unreasonably difficult. In any case, the Buyer shall bear the additional costs incurred as a result of the modification.
h. Delivery of used items agreed in individual cases shall be made to the exclusion of any warranty for material defects.
i. The Seller shall bear the expenses necessary for inspection and subsequent performance, in particular transport, travel, labour and material costs (excluding removal and installation costs), if a defect actually exists. If, however, the Buyer’s request for defect rectification proves to be unjustified, the Seller may demand reimbursement of the resulting costs from the Buyer.
9. Limitation Period
a. Deviating from § 438 (1) no. 3 German Civil Code, the general limitation period for claims arising from defects in quality and title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
b. Statutory special provisions for third-party claims for surrender of property (§ 438 (1) no. 1 German Civil Code), in cases of fraudulent concealment by the Seller (§ 438 (3) German Civil Code) and for claims under supplier recourse upon final delivery to a consumer (§ 479 German Civil Code) shall remain unaffected.
c. The above limitation periods of sales law shall also apply to contractual and non-contractual claims for damages by the Buyer based on a defect of the goods, unless application of the regular statutory limitation periods (§§ 195, 199 German Civil Code) would lead to a shorter limitation period in individual cases. The limitation periods under the Product Liability Act shall remain unaffected in all cases.
d. Otherwise, statutory limitation periods shall apply exclusively to claims for damages by the Buyer pursuant to Clause 10.
10. Other Liability
a. Unless otherwise provided in these General Terms and Conditions including the following provisions, the Seller shall be liable for breaches of contractual and non-contractual obligations in accordance with the applicable statutory provisions.
b. The Seller shall be liable for damages – irrespective of the legal basis – in cases of intent and gross negligence. In cases of simple negligence, the Seller shall only be liable
aa. for damages resulting from injury to life, body or health,
bb. for damages resulting from breach of an essential contractual obligation (an obligation whose fulfilment is essential for the proper performance of the contract and on whose compliance the contractual partner regularly relies and may rely, such as timely delivery and freedom from defects); in this case, liability shall be limited to compensation for the foreseeable, typically occurring damage.
c. The liability limitations arising from Clause 10 b shall not apply if the Seller has fraudulently concealed a defect or assumed a guarantee for the quality of the goods. The same shall apply to claims under the Product Liability Act.
d. In the event of a breach of duty that does not consist of a defect, the Buyer may only withdraw from or terminate the contract if the Seller is responsible for the breach of duty. A free right of termination by the Buyer (in particular pursuant to §§ 651, 649 German Civil Code) is excluded. Otherwise, statutory requirements and legal consequences shall apply.
e. The above exclusions and limitations of liability shall apply to the same extent in favour of the Seller’s corporate bodies, legal representatives, employees and other vicarious agents.
11. Choice of Law, Place of Jurisdiction and Final Provisions
a. These General Terms and Conditions of Delivery and Payment and all legal relationships between us and the Buyer shall be governed by the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG). Preconditions and effects of retention of title pursuant to Clause 7 shall be governed by the law of the location of the goods if the choice of German law is inadmissible or ineffective under that law.
b. 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 – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Munich. The Seller shall, however, also be entitled to bring an action at the Buyer’s general place of jurisdiction.
c. If the contract or these General Terms and Conditions contain gaps, those legally effective provisions shall be deemed agreed upon to fill such gaps which the contracting parties would have agreed upon in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions had they been aware of the gap.
Status: November 2019