AGB
General Terms and Conditions of Sale
| § 1 Application, General Information |
| (1) These terms and conditions of sale shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the buyer without reservation in the knowledge of the buyer’s general terms and conditions. |
| (2) These General Terms and Conditions of Sale apply in particular to contracts for the sale and/or delivery of movable goods („goods“), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, these GTCS shall apply in the version valid at the time of the Buyer’s order or, in any case, in the version last notified to the Buyer in text form. |
| (3) These terms and conditions of sale shall also govern all future transactions between the parties and shall also apply if we perform delivery without reservation despite our knowledge of differing or contrary terms. |
| (4) These terms and conditions of sale shall only apply vis-à-vis entrepreneurs, governmental entities, or special governmental estates within the meaning of sec. 310 para. 1 BGB (German Civil Code). We do not conclude contracts with non-commercial consumers (B2C contracts). |
| (5) Legally relevant declarations and notifications of the buyer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in case of doubts about the legitimacy of the declarant, shall remain unaffected. |
| (6) Any references to the application of statutory provisions are made for the purposes of clarification only. Therefore, the statutory regulations shall also apply without such a clarification insofar as they are not directly altered or are explicitly excluded in these GTCS. |
| § 2 Offer, Acceptance |
| (1) Our offers are non-obligatory and non-binding. This also applies if we have handed over catalogues, technical documentation (e.g. drawings, plans, calculations, references to EN standards), other product descriptions or documents – also in an electronic form – to the buyer. |
(2) There is a minimum order value for all orders, the amount of which varies depending on the country to which the goods are to be dispatched. Our current order and freight conditions and the associated minimum order values can be found at the following link: |
| (3) The order of the goods by the buyer shall be deemed a binding offer of contract. Unless otherwise stated in the order, we are entitled to accept this contractual offer within a period of two weeks. The acceptance can either be declared in text form (e.g. by order confirmation) or by delivery of the goods to the buyer. |
| § 3 Prices, Payment |
| (1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory VAT, excluding the costs of packaging and shipping. |
| (2) In the event that, in the case of an item which we do not already have in stock, after acceptance by us of an order from the buyer, the cost price payable by us in procuring that item increases by at least 20% without us being at fault for that increase, the following shall apply: We shall be entitled, at our option, (a) to cancel the purchase contract with the customer in respect of that item or (b) to adjust the purchase price agreed with the customer by adding the increase in the cost price to the purchase price agreed with the customer without any margin mark-up. If we make use of the aforementioned option to adjust the price, the customer shall in turn have the right to cancel the purchase contract with us in respect of this item within five working days of receipt of our notification of the price adjustment. In the event of a cancellation in the aforementioned cases, further claims are excluded, in particular claims for compensation for loss of profit and/or for compensation for the customer’s additional costs in connection with the alternative procurement of the cancelled item. |
| (3) In absence of a deviating statement from us, in the case of sale by dispatch the Customer shall bear the actual cost of transport ex warehouse and the cost of any transport insurance requested by the Customer. Any customs duties, fees, taxes and any other public levies shall be borne by the buyer. |
| (4) The purchase price shall be due and payable within 14 days of invoicing. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation. |
| (5) Upon expiry of the aforementioned payment deadline, the buyer shall be in default. During the period of default, an interest rate of 10% per year shall be charged on the purchase price. We reserve the right to assert further default damages. Our claim to the commercial due date interest (§ 353 HGB) remains unaffected vis-à-vis merchants. |
| (6) If after conclusion of the contract it becomes apparent that our claim for payment of the purchase price is jeopardized by the Customer’s inability to pay (e.g. an application for commencement of insolvency proceedings) we are entitled to withhold performance in accordance with the statutory provisions of law and – if necessary after fixing a time limit – to withdraw from the contract (sec. 321 BGB). In the case of contracts for the manufacture of non-fungible goods (customised products) we are entitled to withdraw from the contract immediately; this shall not affect the statutory provisions concerning the dispensability of fixing a time limit. |
| § 4 Offset, Right of Retention |
| The buyer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer’s counter rights shall remain unaffected, in particular pursuant to § 8 para. 6 sentence 2 of these GTCS. |
| § 5 Delivery Deadline and Default in Delivery |
| (1) The delivery period shall be agreed individually or stated by us with the acceptance of the order. If this is not the case, the delivery period is approximately four weeks from conclusion of contract. |
| (2) Individually agreed delivery deadlines shall begin with the receipt of our order confirmation by the buyer, but in any event not before clarification of all details for the execution and the provision of necessary certificates by the buyer. Any changes or modifications to the to-be-delivered goods that are agreed after the start of the delivery deadline lead to a restart of the delivery deadline. The delivery deadline shall be deemed observed on the day we advise the buyer that the delivery is ready for dispatch. |
| (3) The occurrence of default in delivery shall be determined by statutory provisions of law. However, a written reminder by the buyer shall be required in all cases. If we are in default of delivery the Customer may demand lump-sum compensation for the loss he has thus suffered. The lump sum for damages shall amount to 1% of the net price of the goods delivered late (delivery value) for each completed calendar week of the delay, but not more than 5% of the delivery value in total. We reserve the right to prove that the buyer has suffered no loss at all or only a substantially smaller loss than the above lump sum. |
| (4) The rights of the buyer according to § 9 of the GTCS and our statutory rights, in particular the exclusion of the obligation to perform (e.g. impossibility of service and/or supplementary performance or if these are deemed unreasonable) remain unaffected. |
| § 6 Non-availability of the goods due to force majeure |
| (1) If we are unable to meet binding delivery deadlines due to a case of force majeure, i.e. any unforeseeable, serious event, such as in particular war, terrorist conflict, epidemics or industrial disputes, which is beyond the control of one of the contracting parties and as a result of which we are prevented in whole or in part from fulfilling our obligations, including fire damage, floods, strikes as well as operational disruptions for which we are not responsible or official orders and lawful lockouts, we shall inform the buyer of this without delay and at the same time inform him/her of the expected new delivery period. We shall also inform the buyer immediately in the event that force majeure ceases to exist. We shall use our best endeavours to remedy the force majeure and to limit its effects as far as possible. |
| (2) We undertake to adapt the contract to the changed circumstances in good faith. For the duration and to the extent of the direct and indirect effect, the contracting parties shall be released from their obligations under the purchase contract and shall not owe any damages in this respect. If the service is also not available within the new delivery period, both contracting parties shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the buyer. |
| (3) A case of non-availability of the service in this sense shall also be deemed to be the non-timely self-delivery by our supplier if we have concluded a congruent covering transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case. |
§ 7 Delivery, Passage of Risk, Shipment (1) Unless otherwise explicitly agreed in writing, the delivery is carried out ex warehouse Lilienthal, Germany, which is also the place of performance and the place of any potential supplementary performance. At the request and costs of the buyer the goods will be shipped to another destination (sale by dispatch), without any effect on the place of performance. Insofar as not otherwise agreed we are entitled to determine the type of shipment (in particular transport company, shipment route, packaging) at our discretion. |
| (2) Delivery is conditioned upon timely and proper performance of all duties of the buyer. Defenses based on non-performance of the contract are reserved. |
| (3) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass 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 shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed to have taken place if the buyer is in default of acceptance or otherwise violates his obligations to cooperate. |
| (4) In case of default in acceptance or other breach of duties to cooperate by the buyer we are entitled to claim any resulting damage including but not limited to additional expenses, if any. In this respect, we are entitled to charge a lump-sum compensation of 1% of the value of the goods per calendar week, starting with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for dispatch; however, a maximum of 5% of the value of the goods in the event of final non-acceptance. The proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, withdrawal, termination) remain unaffected; the lump sum compensation is however to be offset against further monetary claims. The buyer remains entitled to prove that we did not suffer any damages at all or only substantially less damages than the aforementioned lump sum. |
| § 8 Retention of Title |
| (1) We retain title to the sold goods until the full payment of all of our current and future claims due from the purchase contract and from a current business relationship (secured claims). |
| (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. As long as the purchase price has not been completely paid, the buyer shall immediately inform us in writing if the goods become subject to rights of third persons or other encumbrances. |
| (3) In case of a conduct of the buyer which is in breach of the contract, in particular non-payment of the due purchase price, we are entitled to withdraw from the contract according to the statutory regulations and/or to demand that that the goods are handed over to us owing to the retention of title. Any demand for the return of the goods shall not be deemed to include a simultaneous declaration of withdrawal; rather, we shall be entitled to demand only the return of the goods subject to retention of title and to reserve the right to withdraw from the contract. If the buyer does not pay the due purchase price we may however only assert these rights if we have unsuccessfully set the buyer a reasonable deadline for payment or if setting such deadline is expendable under statutory provisions. |
| (4) The buyer is entitled until further notice pursuant to subpara. (c) below to resell the goods subject to the above retention of title in the regular course of business. In this case, the following terms shall apply in addition: |
| (a) The retention of title covers the products which are produced by processing, mixing or combination of our goods at their full value, whereby we are deemed the manufacturer. If the right of ownership of third parties continues to exist despite the processing, mixing or combination with goods of third parties, then we shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. Apart from that the same provisions that govern the goods delivered under retention of shall also apply to the newly created product. |
| (b) The buyer hereby assigns to us the future claims against third parties, which arise from the resale of the goods or of the newly created product in total or in the amount of our co-ownership share, if any, as collateral according to the afore-mentioned paragraph. We hereby accept the assignment. The obligations of the buyer stated in para. 2 and 3 shall also apply in respect of the assigned claims. |
| (c) Notwithstanding our right to claim direct payment the buyer shall remain authorized to collect the claim on the assigned claims. To this end, we agree to not demand payment on the assigned claims to the extent the buyer meets its payment obligations, is not in default of payment, no application has been filed for the opening of insolvency proceedings and we have not exercised our rights pursuant to para. 3 to invoke the retention of title. However, if this is the case we are entitled to 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. In this event we shall also be entitled to revoke the right of the buyer to resell or process the goods that are subject to our retention of title. |
| (5) Insofar as the above securities exceed the secured claim by more than 10%, we are obligated, at our choice, to release such securities upon the buyer’s request. |
| (6) If our retention of title ceases to be valid in the event of deliveries to foreign countries or for other reasons, the Customer must immediately provide to us collateral over the delivered goods or another form of security for our claims which is effective pursuant to the law of the country concerned and which is as close as possible to retention of title under German law. |
| § 9 Warranty |
| (1) The basis for our warranty is the properties of the goods that are agreed in writing with the buyer. All product specifications, which are binding subject of the particular contract, are deemed agreed properties. If there is no agreement on properties, statutory provisions shall apply in determining whether a good is defective or not. |
| (2) Only such features of the goods are considered guaranteed features of the goods that are explicitly designated as such. This applies in particular to agreements on certifications of the goods or of our company, for which we do not assume an implied or conclusive warranty. |
| (3) As a matter of principle, we are not liable for defects of which the buyer is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 BGB). Precondition for any warranty claim of the buyer is the buyer’s full compliance with all requirements regarding inspection and objection established by sec. 377 HGB (German Commercial Code). If a defect is determined during the inspection or subsequently, then this is to be reported to us immediately in writing. Irrespective of this obligation for inspection and reporting of defects the buyer must report obvious defects (including false and shortfall in delivery) within two weeks from delivery in writing. If the buyer fails to properly inspect the goods and/or give notice of defects, our liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions. |
| (4) Warranty claims shall be time-barred after 12 months of the delivery. |
| (5) In case of non-conformity of the goods we have the choice whether the supplementary performance is to be effected by remedying the defect (rectification) or by delivering an item which is free of defects (replacement). Our right to refuse the chosen type of supplementary performance under the statutory pre-requisites remains unaffected. If the supplementary performance has failed, the buyer is entitled to reduce the purchase price or to withdraw from the contract. However, in case of an insignificant defect the buyer shall not have a right to withdraw from the contract. |
| (6) We are entitled to make the owed supplementary performance dependent on the buyer’s payment of the due purchase price. The buyer is, however, entitled to retain a part of the purchase price which is appropriate relative to the defect. |
| (7) The buyer must give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the buyer must return the defective item to us in accordance with the statutory provisions. |
| (8) We shall bear or reimburse the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, in accordance with the statutory provisions if there is actually a defect. Otherwise, we may demand reimbursement from the buyer of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognisable to the buyer. |
| (9) In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the buyer has the right to remedy the defect himself and to demand reimbursement from us of the expenses objectively necessary for this. We are to be informed immediately of such self-execution, if possible in advance. The right of self-execution does not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions. |
| (10) In case of a defect, claims of the buyer for damages or reimbursement of fruitless expenses shall be limited according to § 9. Further claims are excluded. |
| § 10 Liability |
| (1) We shall be liable for damages – irrespective of the legal grounds – within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), for |
| a) for damages resulting from injury to life, body or health, |
| b) for damages arising from the breach of an essential contractual obligation (obligation, the fulfilment of which is a prerequisite for the proper execution of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage. |
| (2) The limitations of liability resulting from para. 1 also apply to third parties as well as to breaches of duty by persons (also in their favour) whose fault we are responsible for according to statutory provisions. They do not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the buyer under the Product Liability Act. |
| (3) Our liability for culpable damage to life, body or health as well as our liability under the Product Liability Act shall remain unaffected. |
| (4) Any liability not expressly provided for above shall be disclaimed. |
| (5) The buyer can only withdraw from the contract due to a breach of an obligation not constituted by a defect in the goods, if we are in culpable breach. A free right of termination of the buyer (in particular according to §§ 650, 648 BGB) is excluded. Aside from that, the statutory preconditions and legal consequences are applicable. |
| (6) Contractual penalties are not owed between the parties under any circumstances. |
| § 11 Export and Import Control |
| It is exclusively the buyer’s duty to observe the applicable import and export control regulations. It is incumbent exclusively on the buyer to assess whether a product requires an import or export license and is subject to export control provisions. The buyer must obtain all the required approvals in due time, at his own cost and responsibility and submit such approvals to us unrequested. |
| § 12 Applicable Law, Jurisdiction, Language |
| (1) These GTCS and the contractual relationship between us and the buyer are solely governed by the substantive laws of the Federal Republic of Germany (excluding the Convention on Contracts for the International Sale of Goods). |
| (2) Place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with the contractual relationship between us and the buyer shall be Lilienthal, Germany. We are however also entitled to file an action at the place of general jurisdiction of the buyer. Mandatory statutory regulations, in particular regarding exclusive jurisdictions, remain unaffected. |
| (3) This text shall be construed in accordance with the laws of Germany. The list of terms attached as the annex entitled „List of Terms“ forms part of this text and shall have the same full force and effect as if expressly set out in the operative part of this text. If the meaning of any English term contained in the list of terms or in this text differs from the meaning of the respective German term, the meaning of the German term shall prevail. |
| List of Terms |
| Place of acceptance |
| (general) terms and conditions of sale |
| default in acceptance |
| offset |
| retention of title |
| defence based on non-performance of the contract |
| assistant in performance |
| place of performance |
| due and payable |
| passage of risk |
| counterclaim |
| statutory VAT |
| warranty |
| governmental entity |
| merchants |
| commercial interest after due date |
| termination |
| delivery deadline |
| default in delivery |
| reminder |
| remedy of defect |
| reduction of price |
| duty/obligation to cooperate |
| supplementary performance |
| (course of) normal business |
| special governmental estate |
| Product Liability Act |
| withdrawal |
| collateral |
| Convention on Contracts for the International Sale of Goods (CISG) |
| Entrepreneur |
| requirements regarding inspection and objection |
| sale by dispatch |
| default interest |
| stay of payments |
| right of retention |
General Terms and Conditions of Purchase
| § 1 Application, General Information |
| (1) These terms and conditions of purchase shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the seller shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. This requirement of consent shall apply in any case, for example even if we accept the seller’s delivery without reservation in knowledge of the seller’s general terms and conditions. |
(2) These General Purchase Conditions apply in particular to contracts for the sale and/or delivery of movable goods („goods“), irrespective of whether the seller manufactures the goods himself or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, these GTCP shall apply in the version valid at the time of the order or, in any case, in the version last notified to the seller in text form. |
| (3) These general purchase conditions shall also govern all future transactions between the parties and shall also apply if we accept the seller’s delivery without reservation despite our knowledge of differing or contrary general terms. |
| (4) These general purchase conditions shall only apply vis-à-vis entrepreneurs, governmental entities, or special governmental estates within the meaning of sec. 310 para. 1 BGB (German Civil Code). |
| (5) Legally relevant declarations and notifications of the seller with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in case of doubts about the legitimacy of the declarant, shall remain unaffected. |
| (6) Any references to the application of statutory provisions are made for the purposes of clarification only. Therefore, the statutory regulations shall also apply without such a clarification insofar as they are not directly altered or are explicitly excluded in these GTCP. |
| § 2 Offer, Acceptance |
| (1) Our order shall be deemed binding at the earliest upon written submission or confirmation. The seller must inform us of obvious errors (e.g. spelling and calculation errors) and incompleteness of the order including the order documents for the purpose of correction or completion before acceptance; otherwise the contract shall be deemed not to have been concluded. |
(2) The seller is obliged to confirm our order in writing within a period of two weeks or, in particular, to execute it without reservation by dispatching the goods (acceptance). A delayed acceptance shall be deemed a new offer and requires a renewed acceptance by us. |
| § 3 Prices, Payment |
| (1) The price stated in the order is binding. All prices include statutory value added tax if this is not shown separately. |
| (2) Unless otherwise agreed in the individual case, the price includes all services and ancillary services of the seller as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance). |
| (3) The agreed price is due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If we make payment within 14 calendar days, the seller shall grant us a 3% discount on the net amount of the invoice. In the case of bank transfer, payment shall be deemed to have been made in due time if our transfer order is received by our bank before expiry of the payment deadline; we shall not be responsible for any delays caused by the banks involved in the payment process. |
| (4) We do not owe interest on arrears. The statutory provisions shall apply to default in payment. |
| § 4 Offset, Right of Retention |
| (1) We shall be entitled to rights of set-off and retention as well as the defence of non-performance of the contract to the extent provided by law. In particular, we are entitled to withhold due payments as long as we are still entitled to claims from incomplete or defective services against the seller. |
| (2) The seller shall have a right of set-off or retention only in respect of counterclaims which have been established by declaratory judgment or are undisputed. |
| § 5 Delivery Deadline and Default in Delivery |
| (1) The delivery time stated by us in the order is binding. If the delivery time is not specified in the order and has not been agreed otherwise, it shall be three weeks from the conclusion of the contract. The seller is obliged to inform us immediately in writing if he is unlikely to be able to meet agreed delivery times – for whatever reason. |
| (2) If the seller does not perform or does not perform within the agreed delivery time or if he is in default, our rights – in particular to rescission and damages – shall be determined in accordance with the statutory provisions. The regulations in para. 3 remain unaffected. |
| (3) If the seller is in default, we may – in addition to further statutory claims – demand lump-sum compensation for our damage caused by default in the amount of 1% of the net price per completed calendar week, but in total not more than 5% of the net price of the goods delivered late. We reserve the right to prove that higher damage has been incurred. The seller reserves the right to prove that no damage at all or only significantly lower damage has been incurred. |
| § 6 Delivery, Passage of Risk, Shipment |
(1) Without our prior written consent, the seller is not entitled to have the performance owed by him rendered by third parties (e.g. subcontractors). The seller shall bear the procurement risk for its performance unless otherwise agreed in individual cases (e.g. limitation to stock). |
| (2) Delivery shall be made „carriage paid“ within Germany to the place specified in the order. If the place of destination is not specified and nothing else has been agreed, the delivery shall be made to our place of business in Lilienthal. The respective place of destination is also the place of performance for the delivery and any subsequent performance (debt to be discharged at the creditor’s domicile). |
| (3) The delivery must be accompanied by a delivery note stating the date (issue and dispatch), the content of the delivery (e.g. article number and quantity) and our order ID (date and number). If the delivery note is missing or incomplete, we shall not be responsible for any delays in processing and payment resulting therefrom. A corresponding dispatch note with the same content must be sent to us separately from the delivery note. |
| (4) The risk of accidental loss and accidental deterioration of the item shall pass to us upon handover at the place of performance. Insofar as an acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply accordingly in the event of acceptance. If we are in default of acceptance, this shall be deemed equivalent to handover or acceptance. |
| (5) The statutory provisions shall apply to the occurrence of our default in acceptance. However, the seller must also expressly offer us his performance if a specific or determinable calendar time has been agreed for an action or cooperation on our part (e.g. provision of material). If we are in default of acceptance, the seller may demand compensation for his additional expenses in accordance with the statutory provisions (§ 304 BGB). If the contract relates to a non-representable item to be manufactured by the seller (customised production), the seller shall only be entitled to further rights if we have undertaken to cooperate and are responsible for the failure to cooperate. |
| § 7 Retention of Title and Confidentiality |
(1) The transfer of ownership of the goods to us shall be unconditional and without regard to the payment of the price. However, if in individual cases we accept an offer of the seller to transfer ownership conditional on payment of the purchase price, the seller’s reservation of ownership shall expire at the latest upon payment of the purchase price for the goods delivered. We shall remain authorised to resell the goods in the ordinary course of business even prior to payment of the purchase price with advance assignment of the claim arising therefrom (alternatively validity of the simple reservation of title extended to the resale). This excludes all other forms of retention of title, in particular the extended retention of title, the passed-on retention of title and the retention of title extended to further processing. |
| (2) We reserve the property rights and copyrights to illustrations, plans, drawings, calculations, instructions for execution, product descriptions and other documents. Such documents are to be used exclusively for the contractual performance and returned to us after completion of the contract. The documents must be kept secret from third parties, even after termination of the contract. The obligation to maintain secrecy shall only expire if and to the extent that the knowledge contained in the documents provided has become generally known. |
| § 8 Warranty |
| (1) The statutory provisions shall apply to our rights in the event of material defects and defects of title of the goods (including incorrect and short delivery as well as improper packaging, defective assembly or operating instructions) and in the event of other breaches of duty by the seller, unless otherwise stipulated below. |
| (2) In accordance with the statutory provisions, the seller shall be liable in particular for ensuring that the goods have the agreed quality when the risk passes to us. In any case, those product descriptions which – in particular by designation or reference in our order – are the subject matter of the respective contract or were included in the contract in the same way as these GTCP shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from us, from the seller or from the manufacturer. |
| (3) We are not obliged to inspect the goods or make special enquiries about any defects at the time of conclusion of the contract. In partial deviation from Section 442 (1) sentence 2 of the German Civil Code (BGB), we are therefore also entitled without restriction to claims for defects if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence. |
| (4) The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial duty to inspect and give notice of defects with the following proviso: Our duty to inspect shall be limited to defects which become apparent during our incoming goods inspection under external appraisal including the delivery documents (e.g. transport damage, wrong and short delivery) or which are recognisable during our quality control in the random sampling procedure. If acceptance has been agreed, there is no obligation to inspect. Otherwise, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later remains unaffected. Notwithstanding our duty to examine, our complaint (notice of defect) shall be deemed to have been made without delay and in good time if it is sent within fifteen working days of discovery or, in the case of obvious defects, of delivery. |
(5) Without prejudice to our statutory rights and the provisions in this section the following shall apply: If the seller fails to fulfil its obligation of subsequent performance – at our discretion by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery) – within a reasonable period of time set by us, we may remedy the defect ourselves and demand reimbursement of the expenses required for this purpose or a corresponding advance payment from the seller. If subsequent performance by the seller has failed or is unreasonable for us (e.g. due to particular urgency, risk to operational safety or imminent occurrence of disproportionate damage), no deadline need to be set; we shall inform the seller of such circumstances without delay, if possible in advance. |
| (6) In addition, in the event of a material defect or defect of title, we shall be entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provisions. In addition, we shall be entitled to claim damages and reimbursement of expenses in accordance with the statutory provisions. |
| § 9 Supplier recourse |
| (1) Our legally determined rights of recourse within a supply chain (supplier recourse pursuant to §§ 445a, 445b, 478 BGB) are available to us without restriction in addition to the claims for defects. In particular, we are entitled to demand exactly the type of subsequent performance (repair or replacement) from the seller that we owe our customer in the individual case. Our statutory right of choice (§ 439 para. 1 BGB) is not restricted by this. |
(2) Before we acknowledge or fulfil a claim for defects asserted by our customer (including reimbursement of expenses pursuant to §§ 445a para. 1, 439 para. 2 and 3 BGB), we shall notify the seller and request a written statement, briefly explaining the facts. If a substantiated statement is not made within a reasonable period of time and if no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, the seller shall be obliged to prove the contrary. |
| § 10 Producer liability |
| (1) If the seller is responsible for product damage, it shall indemnify us against third-party claims to the extent that the cause lies within its sphere of control and organisation and it is liable itself in relation to third parties. |
| (2) Within the scope of its indemnification obligation, the seller shall reimburse expenses pursuant to Sections 683, 670 of the German Civil Code (BGB) arising from or in connection with a claim by third parties including recall actions carried out by us. We shall inform the seller about the content and scope of recall measures – insofar as this is possible and reasonable – and give him the opportunity to comment. Further legal claims remain unaffected. |
| (3) The seller shall take out and maintain product liability insurance with a lump sum coverage of at least EUR 10 million per personal injury/property damage. |
| § 11 Limitation |
| (1) The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions, unless otherwise stipulated below. |
| (2) Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims for defects is 3 years from the transfer of risk. Insofar as acceptance has been agreed, the limitation period shall begin with acceptance. The 3-year limitation period shall also apply accordingly to claims arising from defects of title, whereby the statutory limitation period for claims in rem of third parties for surrender of goods (§ 438 para. 1 no. 1 BGB) shall remain unaffected; claims arising from defects of title shall furthermore not become time-barred in any case as long as the third party can still assert the right – in particular in the absence of a limitation period – against us. |
| (3) The limitation periods of the law on sales including the above extension shall apply – to the statutory extent – to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (§§ 195, 199 BGB) shall apply, unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases. |
| § 12 Applicable Law, Jurisdiction, Language |
| (1) These GTCP and the contractual relationship between us and the seller are solely governed by the substantive laws of the Federal Republic of Germany (excluding the Convention on Contracts for the International Sale of Goods). |
| (2) The exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship between us and the seller is Lilienthal, Germany. However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTCP or a prior individual agreement or at the general place of jurisdiction of the seller. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected. |
| (3) This text shall be construed in accordance with the laws of Germany. The list of terms attached as the annex entitled „List of Terms“ forms part of this text and shall have the same full force and effect as if expressly set out in the operative part of this text. If the meaning of any English term contained in the list of terms or in this text differs from the meaning of the respective German term, the meaning of the German term shall prevail. |
| List of Terms |
| Place of acceptance |
| (general) terms and conditions of purchase |
| default in acceptance |
| offset |
| base interest rate |
| retention of title |
| defence based on non-performance of the contract |
| assistant in performance |
| place of performance |
| due and payable |
| passage of risk |
| counterclaim |
| statutory VAT |
| warranty |
| governmental entity |
| merchants |
| commercial interest after due date |
| termination |
| delivery deadline |
| default in delivery |
| reminder |
| remedy of defect |
| reduction of price |
| duty/obligation to cooperate |
| supplementary performance |
| (course of) normal business |
| special governmental estate |
| Product Liability Act |
| withdrawal |
| collateral |
| Convention on Contracts for the International Sale of Goods (CISG) |
| Entrepreneur |
| requirements regarding inspection and objection |
| sale by dispatch |
| default interest |
| stay of payments |
| right of retention |
