General Terms of Purchase
1. Scope, form
1.1. These General Terms of Purchase (GTP) apply to all of our business relationships with our business partners and suppliers (“Seller”). The GTP shall only apply if the Seller is a trader (Section 14 of the German Civil Code [Bundesgesetzbuch, BGB]), a legal entity under public law or a special fund under public law.
1.2. Our GTP apply to all contracts relating to the sale and/or delivery and/or processing of movable goods as well as to the manufacture and construction of immovable goods. It is irrelevant whether the Seller manufactures the movable or immovable goods itself or purchases them from suppliers.
1.3. Our GTP shall apply in the version valid at the time of our order or, in any event, in the version most recently communicated in text form as a framework agreement, including for similar future contracts, without us having to refer to them again in each individual case.
1.4. Our GTP apply exclusively. The Seller’s deviating, conflicting or supplementary general terms and conditions shall only become part of the contract if and insofar as we have expressly agreed to their validity. This consent requirement applies in any event, for example even if we accept the Seller’s deliveries in the knowledge of its general terms and conditions.
1.5. Individual agreements made with the Seller in individual cases - with particular reference to subsidiary agreements, supplements and amendments - shall take precedence over these GTP in any event. A written contract or our written confirmation determines the content of these individual agreements.
1.6. A framework agreement with the Seller shall take precedence over these GTP; in the event of provisions not or not conclusively agreed in the framework agreement or in the event that it is missing a provision, the GTP shall also apply.
1.7. All legally relevant declarations and notifications of the Seller with regard to the business relationship in general and/or an individual contract in particular, including setting a deadline, reminders, withdrawal, must be made in writing, i.e. in written or text form, meaning by letter or by fax/e-mail. Statutory formal requirements and further evidence, particularly if there are doubts about the legitimacy of the person making the declaration, remain unaffected.
2. Conclusion of contract
2.1. Our order shall be deemed to be binding on written submission or confirmation at the earliest. The Seller shall notify us of obvious errors, e.g. typing and calculation errors, and if the order is incomplete, including the order documents, for the purpose of correction or completion prior to acceptance; otherwise the contract shall be regarded as not having been concluded.
2.2. The Seller is obliged to confirm our order in writing within a period of 7 calendar days. Written confirmation is only required if movable goods are ordered which are sent without reservation within the aforementioned period. Delayed acceptance shall be considered to be a new offer and requires our acceptance.
3. Prices and terms of payment
3.1. The price stated in the order is binding. All prices are net plus statutory value added tax on the order date.
3.2. Unless otherwise agreed on a case-by-case basis, the price shall include all of the Seller’s services and ancillary services as well as all ancillary costs, including proper packaging and transport costs including any transport and liability insurance.
3.3. Advance payments on orders shall be made subject to the proper fulfilment of the contractual obligations and only against the provision of an unlimited advance payment guarantee from a major German or international bank, to be fulfilled on first request, for whose bank charges the Seller is fully liable.
3.4. The agreed price is due for payment within 60 calendar days from complete delivery/performance and receipt of a proper invoice. Early delivery before the delivery date specified in the order does not result in an early due date for payment before the agreed delivery date. If we make payment within 30 calendar days of the due date, 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 on time if our bank receives our transfer order before the payment term. We shall not be responsible for delays caused by banks involved in the payment process.
3.5. We do not owe any interest on maturity. Legal provisions shall apply to default of payment.
3.6. We are entitled to set-off and retention rights as well as the defence of non-performance of the contract to the extent permitted by law. In particular, we shall be entitled to withhold due payments provided that we are still entitled to claims from incomplete or defective deliveries/services against the Seller.
3.7. The Seller only has a right of set-off or retention on the basis of counterclaims that have been legally established or are undisputed.
3.8. The assignment of Seller receivables against us to third parties requires our written consent in order to be effective.
4. Delivery period and delay in delivery
4.1. The delivery period stated by us in the order is binding. If the delivery period is not specified in the order and is not otherwise agreed, it shall be 60 calendar days from the date on which the contract has been concluded. The Seller is obliged to notify us immediately in writing if it is unlikely that it will be able to meet agreed delivery periods for whatever reason.
4.2. If the Seller does not perform its service or does not perform it within the agreed delivery period or if it is in default, our rights, with particular reference to the right to withdraw from the contract and to claim damages, shall be governed by legal provisions. The regulations in point 4.3 remain unaffected.
4.3. If the Seller is in default, we may - in addition to further statutory claims - demand lump-sum compensation for damage we have suffered caused by default in the amount of 1% of the net price per full calendar week, but no more than a total of 10% of the net price of the goods delivered late. We reserve the right to prove that a higher level of loss has been suffered, including but not limited to production bottlenecks, production losses, order rejections and loss of wages or covering purchases. The Seller reserves the right to prove that no damage or only a considerably lower amount damage was incurred.
4.4. In the case of orders for immovable goods, including plant, machinery or buildings, the completion date shall be deemed to be the agreed delivery date.
5. Performance, delivery, transfer of risk, default of acceptance
5.1. Without our prior written consent, the Seller shall not be entitled to have performance it owes rendered by third parties, including subcontractors. The Seller bears the procurement risk for its services, unless otherwise agreed on a case-by-case basis (e.g. limitation to stock).
5.2. The Seller is not entitled to make under-deliveries or partial deliveries; these may be rejected by us. At our request, over-deliveries are to be collected within a set period of time and will be disposed of after expiry of the set period; over-deliveries do not trigger any obligation to provide consideration. The values determined by us are used to set quantities, weights and other delivery parameters.
5.3. Delivery within Germany shall be “carriage paid” to the place specified in the order. If the destination is not specified and unless otherwise agreed, delivery shall be made to our registered office in Zerbst. The respective destination is also the place of performance for the delivery and any supplementary performance. The Seller shall bear the risk of accidental loss until the delivery is handed over or performance is accepted.
5.4. The delivery shall be accompanied by a delivery note stating the date (of issue and dispatch), the contents of the delivery (article numbers and quantities) as well as our order identification (date and number) and all other contractually agreed documents or documents objectively required. If the delivery note or one of the other contractually agreed documents or documents objectively required is missing or incomplete, we are not responsible for any delays in processing and payment that result from this. A corresponding dis-patch note with the same content as the delivery note must be sent to us separately.
5.5. The risk of accidental loss and accidental deterioration of the goods shall transfer to us on delivery at the place of performance. If acceptance has been agreed, this is used to determine transfer of risk. Contract for work legal provisions shall also apply accordingly in the event of acceptance. If we are in default of acceptance, handover or acceptance shall be deemed to have taken place.
5.6. Legal provisions shall apply to the occurrence of our default of acceptance. However, the Seller must also expressly offer us performance if a specific calendar date or a calendar date that can be determined has been agreed for action or cooperation on our part, e.g. the provision of material. If the contract relates to a specific item to be manufactured by the Seller, i.e. custom-made products, the Seller shall only be entitled to further rights if we are obliged to cooperate and are responsible for the failure to cooperate.
6. Confidentiality
6.1. We reserve our property rights and/or other industrial property rights - with particular reference to, but not exclusively, patent rights, design rights, copyrights - to illustrations, plans, drawings, calculations, executive instructions, product descriptions and other documents.
6.2. All documents made available by us are to be used exclusively for contractual performance and must be returned to us after fulfilment of the contract or digital documents and their copies irretrievably deleted. The documents must be kept secret from third parties, even after termination of the contract. The confidentiality obligation shall only expire if and insofar as the knowledge contained in the documents provided has become public knowledge.
7. Retention of title
7.1. Items, including finished and semi-finished products, and tools, templates, samples and other items which we provide to the Seller for production - provided they are not processed - are to be stored separately at the Seller’s expense and insured against destruction and loss to a reasonable extent. The Seller shall inform us immediately if third parties access or are about to access items provided by us, e.g. through seizure.
7.2. Any processing, mixing or combination, i.e. further processing, of provided items by the Seller shall be carried out for us. The same applies if delivered goods are further processed by us, such that we are considered to be the manufacturer and acquire ownership of the product through further processing at the latest, in accordance with legal provisions.
7.3. The transfer of ownership of the goods to us must take place unconditionally and without regard to payment of the price. If, however, on a case-by-case basis, we accept an offer of transfer of title from the Seller, which is conditional on payment of the purchase price, the Seller’s retention of title shall expire no later than on payment of the purchase price for the delivered goods. We shall remain authorised to resell the goods in the ordinary course of business, in advance of payment of the purchase price and to assign the resulting receivable. All other forms of retention of title are therefore excluded in any case, with particular reference to the extended and passed on retention of title and retention of title extended to further processing.
8. Defective delivery
8.1. Legal provisions shall apply to our rights in the event of material defects and defects of title with respect to the goods, including wrong deliveries and under-deliveries as well as improper assembly or defective assembly, operating and instruction manuals, and in the event of other breaches of duty by the Seller, unless otherwise provided for below. In addition, the Seller guarantees that the delivered goods comply with the contractually agreed condition as well as relevant legal requirements, including DIN standards, European directives and regulations, official regulations, and do not infringe third-party rights.
8.2. In accordance with legal provisions, the Seller shall be liable in particular for ensuring that the goods are in the agreed condition at the time risk transfers to us. In any event, product descriptions which are the subject of the respective contract or which have been incorporated into the contract in the same way as these GTP, in par-ticular by designation or reference in our order, shall be deemed to be an agreement on condition. It is irrelevant whether the product description comes from us, the Seller or the manufacturer.
8.3. Legal provisions apply to the commercial duty to inspect and give notice of defects, subject to the following: our duty to inspect and give notice of defects is limited to defects which become apparent during our incoming goods inspection under external examination, including the delivery documents, e.g. transport damage, wrong delivery or under-delivery, or which are recognisable during our random sample for quality control. If acceptance has been agreed, there is no duty to inspect. Otherwise, this 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 duty to give notice of defects discovered later remains unaffected. Notwithstanding our duty to inspect, our notice of defects shall in any case be deemed to be prompt and timely if it is sent within 8 calendar days of discovery or, in the case of obvious defects, delivery. The date on which notice of defects is given shall be used to determine this.
8.4. Supplementary performance shall also include the removal of defective goods and reinstallation, provided that the goods were installed in or attached to another object in accordance with the type of goods they are and their intended use. Our statutory claim to reimbursement of corresponding expenses shall remain unaffected. The Seller shall bear any expenses necessary for the purpose of inspection and supplementary performance even if it transpires that there was actually no defect. Our liability for damages in the event of an unjustified request for the corrective action remains unaffected. However, we are only liable in this respect if we have recognised or grossly negligently failed to recognise that there was no defect.
8.5. Notwithstanding our statutory rights and the provisions of point 8.4, the following shall apply: if the Seller does not fulfil its obligation to provide supplementary performance - either by eliminating the defect, i.e. repair, or by delivering a defect-free item, i.e. replacement delivery, at our discretion - within a reasonable period of time set by us, we may remedy the defect ourselves and demand reimbursement of the necessary expenses or a corresponding advance payment from the Seller. If supplementary performance by the Seller has failed or is unreasonable for us, e.g. due to particular urgency, operational safety being compromised or disproportionate damage being imminent, no deadline shall be set. We shall notify the Seller of such circumstances without undue delay and in advance if possible.
8.6. Otherwise, in the event of a material defect or a defect of title, we are entitled to reduce the purchase price or to withdraw from the contract in accordance with legal provisions. In addition, we are entitled to compensation for damages and expenses in accordance with legal provisions.
9. Supplier regress
9.1. In addition to claims for defects, we are entitled to our legally determined rights of recourse within a supply chain without restriction. In particular, we are entitled to demand from the Seller exactly the type of supplementary performance (repair or re-placement delivery) that we owe our customer on a case-by-case basis. Our statutory right to vote is not restricted by this.
9.2. Before we acknowledge or fulfil a claim for defects asserted by our customer, including the reimbursement of expenses, we shall notify the Seller and request a written statement of the facts of the case. If a substantiated statement is not made within a reasonable period of time and 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 responsible for providing evidence to the contrary.
9.3. Our claims arising from supplier recourse shall also apply if the defective goods have been further processed by us or another trader, e.g. through installation in another product.
10. Producer liability
10.1. If the Seller is responsible for product damage, it shall indemnify us against claims of third parties to the extent that the cause of damage lies within its sphere of control and organisation and it itself is liable in the external relationship.
10.2. Within the scope of its indemnification obligation, the Seller shall reimburse us for any expenses arising from or in connection with any recourse to third parties, including recall measures taken by us. To the extent possible and reasonable, we shall inform the Seller of the content and scope of recall measures and give it the opportunity to comment. Further legal claims shall remain unaffected.
10.3. The Seller shall take out and maintain product liability insurance with lump sum cover of at least EUR 10 million for each case of personal injury/property damage.
11. Limitation period
11.1. The mutual claims of the contracting parties shall become time-barred in accordance with legal provisions, unless otherwise provided for below.
11.2. The limitation period for claims for defects is 3 years from the date on which risk transfers. If acceptance has been agreed, the limitation period shall commence on acceptance. The 3-year limitation period also applies accordingly to claims arising from defects of title, where the statutory limitation period for real claims for restitution by third parties remains unaffected; furthermore, claims arising from defects of title do not become time-barred under any circumstances if the third party can still assert the right against us, particularly in the absence of a limitation period.
11.3. Sales law limitation periods, including the aforementioned extension, apply to all contractual claims for defects to the extent permitted by law. If we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period shall apply here, unless the application of sales law limitation periods results in a longer limitation period on a case-by-case basis.
11.4. If deliveries are made on the basis of a service or work contract, statutory limitation periods shall apply accordingly.
12. Choice of law and place of jurisdiction
12.1. The law of the Federal Republic of Germany shall apply to these GTP and the contractual relationship between us and the Seller, to the exclusion of international uniform law, with particular reference to the UN Convention on Contracts for the International Sale of Goods.
12.2. Should individual provisions of these GTP be or become invalid either in whole or in part, the validity of the remaining provisions shall not be affected thereby. A wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision.
12.3. If the Seller is a business within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law or a special fund under public law, the exclusive - and international - place of jurisdiction for all disputes arising from the contractual relationship shall be Zerbst. The same applies if the Seller is a trader within the meaning of Section 14 of the BGB. However, in all cases, we are also entitled to take legal action at the place of performance of the delivery obligation in accordance with these GTP or an overriding individual agreement, or at the Seller’s general place of jurisdiction. Overriding legal provisions, in particular those con-cerning exclusive jurisdiction, shall remain unaffected.
General Terms of Sale
1. Scope, form
1.1. These General Terms of Sale (GTS) apply to all of our business relationships with our customers (“Buyer”). The GTS shall only apply if the Buyer is a trader (Section 14 of the German Civil Code [Bundesgesetzbuch, BGB]), a legal entity under public law or a special fund under public law.
1.2. Our GTS apply to all contracts, in particular to the sale and/or delivery of our products (“Goods”) and the processing of products. It is irrelevant whether the products are manufactured solely by us or whether we purchase the products or parts thereof from suppliers and service providers.
1.3. Our GTS shall apply in the version valid at the time of the Buyer’s order or, in any event, in the version most recently communicated to them in text form as a framework agreement, including for similar future contracts, without us having to refer to them again in each individual case.
1.4. Our GTS apply exclusively. The Buyer’s deviating, conflicting or supplementary general terms and conditions shall only become part of the contract if and insofar as we have expressly agreed to their validity. This consent requirement applies in any event, for example even if we deliver to the Buyer without reservation in the knowledge of the Buyer’s general terms and conditions.
1.5. Individual agreements made with the Buyer in individual cases - with particular reference to subsidiary agreements, supplements and amendments - shall take precedence over these GTS. A written contract or our written confirmation determines the content of these individual agreements.
1.6. All legally relevant declarations of the Buyer in relation to the business relationship in general and/or an individual contract in particular - including, but not limited to, setting a deadline, notification of defects, declaration of withdrawal or reduction of the purchase price - must be made in writing, i.e. in written or text form, meaning by letter or by fax/e-mail. Statutory formal requirements and further evidence, particularly if there are doubts about the legitimacy of the person making the declaration, remain unaffected.
2. Conclusion of contract
2.1. Our offers are subject to change and are non-binding. This also applies in particular if we have provided the Buyer with catalogues, technical documentation - e.g. drawings, plans, computations, calculations, references to DIN standards - and other product descriptions or documents, which also includes those sent electronically.
2.2. The Buyer ordering goods is considered to be a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 14 calendar days of us having received it.
2.3. Acceptance is effected by sending a written order confirmation or by delivering the goods to the Buyer.
3. Prices and terms of payment
3.1. The prices valid at the time the contract is concluded are our current prices - strictly net ex warehouse - plus statutory value added tax on the day of delivery. Individual contractually agreed prices are based on our written order confirmation.
3.2. In the case of sale to destination, the Buyer bears transport costs ex works and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
3.3. The purchase price is due and payable within 30 calendar days of invoicing and delivery or acceptance of the goods. However, we are entitled to only make a delivery in whole or in part against advance payment at any time, including within the scope of an ongoing business relationship. We declare a corresponding reservation with the order confirmation at the latest.
3.4. On expiry of the aforementioned payment term, the Buyer is in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damages caused by default. Our entitlement to commercial interest on maturity remains unaffected to traders.
3.5. The Buyer is only entitled to set-off or retention rights to the extent that its claim is established by law or is undisputed. In the event of defects in delivery, the Buyer’s counterrights shall remain unaffected.
3.6. If it becomes apparent after conclusion of the contract that our claim to the purchase price is jeopardised by the Buyer’s lack of ability to pay - including non-compliance with payment terms, indications of lack of creditworthiness, application to commence insolvency proceedings - we shall be entitled to refuse performance in accordance with legal provisions and to demand advance payment and, if necessary after setting a deadline, to withdraw from the contract. With respect to contracts for the manufacture of specific items, i.e. custom-made products, we are able to declare withdrawal immediately; legal regulations on the dispensability of setting a deadline remain unaffected.
4. Delivery period and delay in delivery
4.1. The delivery period shall be agreed individually or stated by us in the order confirmation; all agreed delivery periods shall be plus 14 calendar days before the delivery is delayed. Fulfilment of the Buyer’s contractual obligations is also a condition for the delivery deadline being met.
4.2. If we are unable to meet binding delivery deadlines for reasons beyond our control, we will notify the Buyer of this immediately, stating the expected new delivery deadline. If per-formance is not available even within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall reimburse any consideration already provided by the Buyer without undue delay. Non-availability of performance in this sense particularly refers to untimely self-supply by our supplier; if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not bound to procurement on a case-by-case basis.
4.3. Any delay in delivery shall be determined in addition to point 4.1, in accordance with legal provisions. However, in any event, a reminder from the Buyer is required. If we delay the delivery, the Buyer cannot demand lump-sum compensation for the damage caused by the delay. We reserve the right to prove that the Buyer has not incurred any damage at all or only a considerably lower amount of damage.
5. Delivery, transfer of risk, acceptance, default of acceptance
5.1. Delivery is ex works, which is also the place of performance for delivery and any supplementary performance. The goods may be shipped to another destination at the request and expense of the Buyer. Unless otherwise agreed, we shall be entitled to determine the type of shipment - with particular reference to the transport company, the shipment route, packaging - ourselves. In addition, the INCOTERMS valid at the time the contract is concluded shall be deemed to be agreed, unless otherwise agreed by individual agree-ment or these GTS.
5.2. We permit partial deliveries as well as under-deliveries and over-deliveries of up to 10%.
5.3. Transport insurance will only be taken out at the explicit request of the Buyer and at its expense.
5.4. The risk of accidental loss and accidental deterioration of the goods is transferred to the Buyer on delivery at the latest. However, in the case of sale to destination, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass on delivery of the goods to the forwarding agent, carrier or any other person or institution used for shipment.
5.5. If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we are entitled to demand compensation for the resulting damage including additional expenses, e.g. storage costs. For this, we charge flat-rate compensation of EUR 2.00 per square meter of storage space per month, starting with the delivery period or - in the absence of a delivery period - starting with the notification that the goods are ready for dispatch.
Proof of a higher damage and our legal claims - with particular reference to compensation for additional expenses, appropriate compensation, termination - remain unaffected; lump-sum compensation is to be offset against further monetary claims. The Buyer shall be entitled to prove that we have not incurred any damage at all or that the damage we have incurred is considerably less than the above lump sum.
6. Retention of title
6.1. We retain title to the goods sold until full payment of all of our present and future receivables arising from the purchase contract and an ongoing business relationship with the Buyer or an affiliated company, i.e. secured receivables.
6.2. Goods subject to retention of title may not be pledged to third parties or transferred by way of security before full payment of the secured receivables. The Buyer must inform us immediately in writing if an application for the commencement of insolvency proceedings is submitted or if third parties have access to goods belonging to us, e.g. as a result of seizures. In the event of access by third parties to reserved goods or to receivables transferred to us, the Buyer must inform the third parties of the retention of title and must immediately notify us of access by third parties and hand over any documents necessary for intervention. The Buyer shall bear any costs we incur for defence.
6.3. If the Buyer acts in breach of contract, in particular if it fails to pay the purchase price due, we are entitled to withdraw from the contract in accordance with legal provisions and/or to demand that the goods are returned based on the retention of title. The demand for return does not also include declaration of withdrawal; rather, we are entitled to only demand the goods and reserve the right to withdraw from the contract. If the Buyer does not pay the purchase price due, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment to no avail or if setting a deadline is dispensable according to legal provisions.
6.4. Until withdrawal, 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 also apply.
6.4.1. The retention of title extends to the full value of products resulting from processing, mixing or combining our goods, where we are considered to be the manufacturer. If, in the event of processing, mixing or combining with third-party goods, third-party ownership continues, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to goods supplied under retention of title.
6.4.2. The Buyer hereby assigns to us as security all receivables against third parties arising from the resale of the goods or product, either in total or in the amount of our potential co-ownership share in accordance with the paragraph above. We accept the assignment. The obligations of the Buyer outlined in point 6.2 shall also apply with respect to the assigned receivables.
6.4.3. The Buyer remains authorised to collect the receivable as well as us. We are obliged not to collect the receivable as long as the Buyer meets its payment obligations to us, there is no deficiency in its ability to pay and we do not assert retention of title by exercising a right in accordance with point 6.3. However, if this is the case, we can demand that the Buyer notifies us of assigned receivables and their debtors, provides all information required for collection, hands over relevant documents and notifies the debtors (third parties) of the assignment. Furthermore, in this case we are entitled to withdraw the Buyer’s authority to further sell and process goods subject to retention of title.
6.5. If the realisable value of the securities exceeds our receivables by more than 10%, we shall release securities of our choosing at the request of the Buyer.
7. Buyer’s claims for defects
7.1. The basis of our liability for defects is primarily the contractual agreement made regarding the condition of the goods. In particular, all product descriptions, with particular reference to drawings, standard requirements and specifications, which are the subject of the individual contract or which were made public by us at the time the contract was concluded shall be deemed to be an agreement on the condition of the goods.
7.2. If there is no agreement in place on the condition, whether or not there is a defect must be determined based on legal regulations. Verbal statements made about the condition, including advertising statements, which the Buyer has not referred us to as being key in its purchase shall not become a contractual description of the condition, subject to evidence of an effective individual agreement.
7.3. The Buyer’s claims for defects require that it has met its legal duty to inspect and give notice of defects without undue delay in accordance with the provisions of point 8. If the Buyer fails to carry out a proper inspection and/or report defects, our liability for any defect not reported, not reported on time or not reported properly shall be excluded.
7.4. We do not provide any guarantee for defects for which we are not responsible, with particular reference defects caused by unsuitable and improper use, faulty assembly, climatic conditions not agreed in the contract, excessive strain or natural wear and tear.
7.5. If the delivered goods are defective, we may initially choose whether we provide supplementary performance by eliminating the defect, i.e. repair, or by delivering a defect-free item, i.e. replacement delivery. Our right to refuse supplementary performance under legal conditions remains unaffected.
7.6. We are entitled to make supplementary performance owed dependent on the Buyer paying the purchase price due. However, the Buyer is entitled to retain a reasonable part of the purchase price in relation to the defect.
7.7. The Buyer must give us the time and opportunity necessary for the supplementary performance owed, with particular reference to handing over rejected goods for inspection purposes. In the event of a replacement delivery, the Buyer must return the defective item to us in accordance with legal provisions. Supplementary performance does not include either removal of the defective item or reinstallation if we were not originally obliged to install it.
7.8. We shall bear or reimburse the expenses required for the purpose of inspection and supplementary performance, with particular reference to transport, travel, labour and material costs and, if applicable, dismantling and installation costs, in accordance with legal provisions if there is actually a defect. Otherwise, we can demand reimbursement from the Buyer with respect to any costs incurred as a result of the unjustified demand for defects to be removed, with particular reference to testing and transport costs.
7.9. If supplementary performance has failed or a reasonable deadline to be set by the Buyer for supplementary performance has passed to no avail or is dispensable in line with legal provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. However, if there is an insignificant defect, there is no right of withdrawal.
7.10. The Buyer’s warranty claims become time-barred after one year.
7.11. The Buyer’s claims for damages or compensation for wasted expenditure shall only apply in accordance with point 9, even in the case of defects, and shall otherwise be excluded.
8. Duty to inspect and give notice of defects
8.1. The Buyer is obliged to check the goods for completeness and visible defects without undue delay and to give notice of any objections to the correctness and condition of the delivery as well as any missing quantities without undue delay. These obligations also include the duty to inspect and give notice of defects with respect to all accompanying delivery documents, including the delivery note, invoice, certificates and other transport documents.
8.2. The Buyer must declare complaints to us in text form, i.e. by fax or e-mail. To be effective, these notices must contain the description of the order and the reason for the notice, including defects relating to type and/or quality and/or quantity and/or missing/faulty delivery documents.
8.3. The Buyer must carry out an inspection and give notice of defects within 3 working days of receiving the goods or after delivery of the goods to an agreed place. If the goods are delivered by the forwarder or carrier, the handover certificate and/or the delivery list shall be deemed to be the relevant date for receipt or delivery. The period begins on the working day following receipt/delivery and ends on the working day following that, where Saturdays are also considered to be working days by law. If for operational reasons, e.g. in the event of onward transport where intact packaging is required, inspection and notification of defects is not possible within 3 working days, an appropriate extension of the inspection and notification possibilities must be asserted in text form, i.e. by fax or e-mail, stating reasons. The claim for extension must be declared to us in text form immediately before expiry of the 3 working day period. If the claim for extension is made in due time, the period for inspection and notification of defects shall be automatically extended by a further 3 working days, calculated after the first period of 3 working days has expired. If the claim for extension is not made in due time, the original period of 3 working days remains in place.
8.4. If a notice of defects is not given in text form, i.e. by fax or e-mail, or this is not done in due time, the delivered goods shall be deemed to be approved and performance shall be deemed to have been provided in accordance with the contract. In this case, the warranty claim is void and the agreed purchase price must be paid in full and on time.
8.5. If there is a hidden defect, we must be notified of this immediately after it is found it in text form, i.e. by fax or e-mail, in order for warranty claims to be asserted effectively.
9. Liability
9.1. Unless otherwise provided for in these GTS, including the following provisions, we shall be liable for any breach of contractual and non-contractual obligations in accordance with legal provisions.
9.2. Regardless of legal basis, we shall be liable for damages within the scope of liability for culpability in the event of intent and gross negligence. In the event of simple negligence and subject to statutory limitations of liability, we shall only be liable
9.2.1. for damages resulting from injury to life, limb or health.
9.2.2. for damages resulting from the breach of a material contractual obligation, i.e. obligations where proper execution of the contract is only possible if such an obligation is fulfilled and the contractual partner may reasonably expect to rely on compliance with such an obligation. In this case, however, our liability shall be limited to compensation for foreseeable, typically occurring damage.
9.2.3. The limitations of liability from point 9.2 shall also apply to breaches of duty by or in favour of persons for whom we are responsible in accordance with legal provisions. They do not apply if we have fraudulently concealed a defect or have assumed a guarantee for the condition of the goods and for the Buyer’s claims under the Product Liability Act (Produkthaftungsgesetz).
9.3. The Buyer may only withdraw or terminate the contract on the basis of a breach of duty which does not involve a defect if we are responsible for the breach
of duty. A free right of termination by the Buyer is excluded. In all other
respects, legal conditions and conse-quences shall apply.
10. Force majeure
10.1. Force majeure means the occurrence of an event or a circumstance that prevents us from fulfilling one or more of our contractual obligations. This is the case if (a) such an event or such a circumstance is beyond our reasonable control and (b) it was not normally foreseeable at the time of contract conclusion and (c) the effects could not have been avoided or overcome by us by prudent judgment.
10.2. In the absence of proof to the contrary, the following events shall be deemed to satisfy conditions (a) and (b) under Section 10.1: (i) wars (whether declared or undeclared), hostilities, invasions, acts of foreign enemies, full-scale military mobilization; (ii) civil wars, riots, rebellions and revolutions, military or usurped power, insurrections, acts of terrorism, sabotage or piracy; (iii) foreign exchange and trade restrictions, embargoes, sanctions; (iv) governmental actions, whether lawful or unlawful, compliance with laws or governmental orders, expropriations, seizures of factories, requisition, nationalization; (v) plagues, epidemics, pandemics, natural disasters or extreme natural events; (vi) explosions, fires, destruction of facilities, prolonged unavailability of transportation, telecommunications, information systems or power; (vii) general labor unrest such as boycotts, strikes and lockouts, slowdowns, occupation of factories and buildings.
10.3. At the time of invoking force majeure on the basis of Sections 10.1 and 10.2, we shall be released from the obligation to perform our contractual obligations and from any liability for damages or any other contractual remedies due to breach of contract, provided that we invoke force majeure immediately upon becoming aware of such circumstances.
10.4. If the effect of the asserted event or circumstance is temporary, the above consequences shall apply only for as long as such an event or such a circumstance impedes us. We have the right to terminate a contract if the duration of the event or circumstance exceeds 120 days from the date on which we have invoked force majeure.
11. Limitation period
11.1. The general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the limitation period shall commence on acceptance.
11.2. The aforementioned sales law limitation periods shall also apply to the Buyer’s contractual and non-contractual claims for damages which are based on a defect in the goods, unless the application of the regular statutory limitation period would result in a shorter limitation period on a case-by-case basis. However, the Buyer’s claims for damages in accordance with points 9.2.1 and 9.2.2 and in accordance with the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
12. Choice of law and place of jurisdiction
12.1. The law of the Federal Republic of Germany shall apply to these GTS and the contractual relationship between us and the Buyer, to the exclusion of international uniform law, with particular reference to the UN Convention on Contracts for the International Sale of Goods.
12.2. Should individual provisions of these GTS be or become invalid either in whole or in part, the validity of the remaining provisions shall not be affected thereby. A wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision.
12.3. If the Buyer is a business within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law or a special fund under public law, the exclusive - and international - place of jurisdiction for all disputes arising directly or in-directly from the contractual relationship shall be our registered office. The same applies if the Buyer is a trader within the meaning of Section 14 of the BGB. However, in all cases, we are also entitled to take legal action at the place of performance of the delivery obligation in accordance with these GTS or an overriding individual agreement, or at the Buyer’s general place of jurisdiction. Overriding legal provisions, in particular those concerning exclusive jurisdiction, shall remain unaffected.