General terms and conditions of sale
§ 1 General, scope of application
(1) These General Terms and Conditions of Sale (GTC) apply to all our business relations with our customers (hereinafter referred to as Buyer). The GCS shall only apply if the Buyer is an entrepreneur (§14 BGB), a legal entity under public law or a special fund under public law.
(2) The GCSD apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter referred to as goods) regardless of whether we manufacture the goods ourselves or purchase them from suppliers.
(3) Our AVB apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of Business of the Buyer 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 any case, even if we carry out our delivery without reservation in knowledge of the Buyer's General Terms and Conditions.
(4) Legally relevant declarations and notifications to be made to us by the Seller after conclusion of the contract (e.g. setting of a deadline, notification of defects, withdrawal) must be made in text form to be effective.
(5) Insofar as reference is made in these General Terms and Conditions to the validity of statutory provisions, this shall only have clarifying significance. Even without such clarification, the statutory provisions shall apply unless they are directly amended or expressly excluded in these GTC.
§ 2 Conclusion of contract
(1) Our offers are subject to change and non-binding. This shall also apply if we provide the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, cost estimates), other product descriptions or documents, also in electronic form, to which we reserve ownership and copyright.
(2) The order by the buyer is binding. We are entitled to accept this contractual offer within two weeks of receipt by us.
(3) Acceptance shall be made either by written order confirmation or by delivery of the goods to the purchaser.
§ 3 Delivery period and delay in delivery
(1) Delivery periods are agreed individually or are communicated by us upon acceptance of the order; if this is not the case, delivery shall be approx. four weeks from conclusion of the contract.
(2) If we cannot meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the purchaser immediately. At the same time, we shall inform the purchaser of the expected new delivery period. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part. Any consideration already provided by the purchaser will be reimbursed immediately. In particular, the non-availability of the service in this sense shall be deemed to be the non-timely delivery by our supplier if we have concluded a congruent hedging transaction, neither we nor our suppliers are at fault or we are not obliged to procure the goods in individual cases.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the purchaser is required. If we are in default of delivery, the purchaser may demand lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price for each completed calendar week of the delay, but in total not more than 5% of the delivery value of the delayed goods. We can prove that the buyer has not incurred any damage or that the damage incurred is considerably lower.
(4) The rights of the buyer according to § 8 of these GTC and our legal rights, in particular in the event of an exclusion of the obligation to perform, shall remain unaffected.
§ 4 Delivery, transfer of risk, acceptance, default of acceptance
(1) Delivery is ex warehouse, which is also the place of performance. At the request and expense of the Seller, the goods shall be shipped to another destination (sale to destination). Unless otherwise agreed, we shall be entitled to determine the type of shipment, the transport company, the shipping route and the packaging ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon delivery. In the case of mail order purchases, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall be transferred 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 is decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly to an agreed acceptance. If the buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.
(3) If the buyer is in default of acceptance, if he 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 we charge a flat-rate compensation of 0.5 % per calendar week, but no more than 5 % of the delivery value, beginning with the delivery period or, in the absence of a delivery period, with the notification that the goods are ready for dispatch. The proof of a higher damage and our legal claims (compensation for additional expenses, reasonable compensation, termination) remain unaffected. The lump sum shall be set off against any further monetary claims. The buyer is entitled to prove that we have not incurred any damage or that the damage incurred is significantly less than the flat rate.
§ 5 Prices and terms of payment, reservation of advance payment
(1) Unless otherwise agreed, our prices current at the time of conclusion of the contract shall apply, namely ex warehouse, plus the respective applicable statutory value added tax.
(2) In the case of sale to destination (cf. § 4 para. 1), the purchaser shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the purchaser. If we do not charge the transport costs actually incurred in the individual case, we will charge a flat rate for transport of € 45.00.
Customs duties, fees, taxes and other public charges shall be borne by the buyer.
(3) The purchase price is due and payable within 14 days of invoicing and delivery or acceptance. For contracts with a delivery value of more than € 5,000.00 we are entitled to demand a down payment of 30% of the purchase price. The down payment is due and payable within 14 days of the invoice date.
(4) In the case of orders from customers with residence or place of business abroad or in the event of justified indications of a risk of non-payment, we reserve the right to deliver only after receipt of the purchase price together with shipping costs. If we make use of this reservation of advance payment, we will inform you immediately. In this case, the delivery period begins with payment of the purchase price and the shipping costs.
(5) With the expiration of the payment period, the buyer is in default of payment. During the period of default, the purchase price shall bear interest at the statutory default interest rate applicable at the time. We are at liberty to assert further damages caused by default. The claim to commercial interest on arrears in accordance with § 353 HGB (German Commercial Code) remains unaffected vis-à-vis merchants.
(6) If, after conclusion of the contract, it becomes apparent that our purchase price claim is endangered by the Buyer's inability to pay, in particular if insolvency proceedings are opened, we may withdraw from the contract in accordance with the statutory provisions on refusal to perform and, if necessary, after setting a deadline (§ 321 BGB). The legal regulations regarding the dispensability of setting a deadline remain unaffected.
§ 6 Retention of title
(1) We reserve title to the goods sold until all our claims arising from the purchase contract and an ongoing business relationship have been paid in full.
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment has been made. The purchaser must inform us immediately in writing if and to the extent that third parties have access to goods belonging to us.
(3) If the buyer acts in breach of contract, in particular if he fails to pay the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the reservation of title and the withdrawal. If the buyer does not pay the due purchase price, we may only assert these rights if we have previously set the buyer an unsuccessful and reasonable deadline for payment or if such setting of a deadline is dispensable under the statutory provisions.
(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 apply in addition:
a) The retention of title extends to the full value of the products resulting from the processing, mixing or combination of our goods, whereby we are considered the manufacturer. If a third party's right of ownership remains in effect after processing, mixing or combining with goods of a third party, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same applies to the creation of the products as to the goods delivered under reservation of title.
b) The purchaser hereby assigns to us as security all claims against third parties arising from the resale of the goods or the product, either in full 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 paragraph 2 shall also apply in consideration of the assigned claims.
c) In addition to us, the buyer remains authorized to collect the claim. We undertake not to collect the claim as long as the buyer fulfils his payment obligations to us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other defect in his ability to pay. However, if this is the case, we can demand that the buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
d) If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the request of the buyer.
§ 7 Claims for defects of the buyer
(1) The statutory provisions shall apply to the rights of the purchaser in the event of material defects and defects of title, unless otherwise specified below. In any case, the special regulations for final delivery to a consumer remain unaffected.
(2) The basis of our liability for defects is the agreement reached on the quality of the goods. The product descriptions designated as such, which were provided to the purchaser prior to his order or which were included in the contract in the same way via these General Terms and Conditions, shall be deemed to be the agreement on the quality of the goods.
(3) Insofar as the quality has not been agreed, the statutory regulation shall be applied to determine whether or not there is a defect (§ 434 (1) sentences 2 and 3 BGB). However, we do not assume any liability for public statements of the manufacturer or other third parties (e.g. advertising statements).
(4) The buyer's claims for defects presuppose that he has complied with his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). If a defect is revealed during the inspection or later, we must be notified of this in writing without delay. The notification shall be deemed to be without delay if it is made within two weeks; timely dispatch shall be sufficient to meet the deadline.
(5) If the delivered goods are defective, the purchaser may, at his discretion, initially demand as subsequent performance the removal of the defect (rectification of defects) or new delivery of a defect-free item (replacement delivery). If the buyer does not declare which of the two rights he chooses, we can set a reasonable deadline for this. After expiry of the deadline, the right of choice shall pass to us.
(6) We shall be entitled to make the subsequent performance owed dependent on the purchaser paying the purchase price due; the purchaser may, however, retain a part of the purchase price which is reasonable in relation to the defect (as a rule, three times the costs of remedying the defect).
(7) We shall be entitled to be granted the time required for the subsequent performance owed and to be given the opportunity to have the goods complained about handed over for inspection. In the case of a replacement delivery, the purchaser must return the defective item to us. The statutory provisions shall apply in this respect. Subsequent performance does not include the removal of the defective item or the reinstallation if we were not originally obliged to install it.
(8) The expenses necessary for the purpose of inspection and subsequent performance shall be borne by us if a defect actually exists. If the demand for removal of the defect turns out to be unjustified, we can demand reimbursement of the costs incurred from the purchaser.
(9) If the subsequent performance has failed or has not taken place within a reasonable period of time to be set by the purchaser or is dispensable according to the statutory provisions, the purchaser may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect there is no right of withdrawal.
(10) Claims of the buyer for damages or expenses in vain for compensation exist only in accordance with § 8 and are otherwise excluded.
§ 8 Other liability
(1) Unless otherwise provided for in these General Terms and Conditions of Sale 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 - in the event of intent and gross negligence. In case of simple negligence we shall only be liable
a) for damages resulting from injury to life, body or health
b) for damages resulting from the breach of an essential contractual obligation (an obligation whose fulfilment is essential for the proper performance of the contract and on whose compliance the contracting party 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 paragraph 2 shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same shall apply to claims of the purchaser under the Product Liability Act.
(4) Due to a breach of duty which does not consist of a defect, 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. In all other respects, the statutory requirements and legal consequences shall apply.
§ 9 Limitation period
(1) Notwithstanding § 438 (1) No. 3 BGB, the general limitation period for claims arising from material defects and defects of title is 1 year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) The statutory special regulations for in rem restitution claims of third parties, in case of fraudulent intent of the seller and for claims in supplier recourse in case of final delivery to a consumer remain unaffected.
(3) The aforementioned limitation periods of the law on the sale of goods 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 BGB would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act shall remain unaffected in any case. Otherwise, the statutory limitation periods shall apply exclusively to the Buyer's claims for damages pursuant to § 8.
§ 10 Choice of law, place of jurisdiction, contractual language
(1) The law of the Federal Republic of Germany shall apply exclusively to these General Terms and Conditions and all legal relations between us and the Buyer, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. Prerequisite and effect of the reservation of title according to § 6 are subject to the law of the respective location of the item, insofar as the choice of law made in favour of German law is inadmissible or ineffective.
(2) If the purchaser 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 Heidelberg. We shall also be entitled to bring an action at the buyer's general place of jurisdiction.
(3) Contract language is German. The German language version shall be decisive for the interpretation of these General Terms of Sale.
§ Section 11 Severability clause
(1) Should a provision in these terms of delivery or a provision within the framework of other agreements between us and the customer be or become invalid, the validity of all other provisions or agreements shall not be affected. In this case, the parties to the contract shall be obliged to replace the invalid provision with a valid provision that best achieves the economically intended result.