1. Validity of the General Terms and Conditions for Sale and Delivery
The offers by the supplier, the acceptance of the orders, and all the deliveries shall take place exclusively on the basis of the following “General Terms and Conditions for Sale and Delivery”.
Conditions for purchases by the buyer are here expressly contradicted; they shall not place the supplier under any obligation even if he does not object to them once again when the contract is drawn up.
Different arrangements shall only be effective if the supplier expressly agrees in writing to the validity of the conditions set down by the buyer.
2. Offer and conclusion of the contract
a) The supplier’s offers are made without obligation and under the reservation of confirmation in writing by the supplier unless other arrangements have expressly been made in writing. The acceptance of orders made to a travelling representative or [other] representative remains reserved and also requires confirmation in writing by the supplier.
[All] documents pertaining to an offer such as pictures, drawings, statements regarding weight, and more detailed descriptions are only approximations and serve the purpose of an approximate description and establishment of the item to be delivered. This also applies to details relating to service and use.
These details are not a guarantee for the quality or the durability of the item to be delivered. The supplier reserves the right to make alterations in the measurements and weight of the item to be delivered up to the delivery.
b) The supplier retains the right of ownership and copyright on all pictures, drawings, calculations, and also other documents such as brochures and catalogues. Any use except that for which this contract forms the basis, such as passing on to a third party, requires the express agreement of the supplier in writing.
3. Prices and payment
a) Prices are stated without packaging and are not valid for repeat orders. Packaging is charged separately. Skeleton contracts are not affected by these rules; appropriate conditions will be arranged separately.
b) The prices are calculated according to the replacement costs at the time of the confirmation in writing by the supplier. If these replacement costs have risen by the time of the delivery owing to an increase in expenses, in the price of the raw materials, indirect materials, energy, freight, or wages, the supplier shall be entitled to make corresponding adjustments to the agreed price. Such a price increase can not be claimed as a basis for the right to resign by the buyer.
c) If the agreed delivery period is more than four months after the conclusion of the contract, or if the delivery does not in fact take place, for reasons for which the buyer is responsible, for more than four months after the conclusion of the contract, the supplier is entitled to charge the price that is effective on the day on which the delivery is made.
d) The agreed delivery price plus the statutory Value Added Tax is due for payment after receipt of the bill, irrespective of any different agreement. Payment to travelling representatives or [other] representatives of the supplier are inadmissible without a collection authority in writing. The costs of packaging, transport, and assembly are due for payment immediately on receipt of the bill. In the event of several unpaid bills, payments will first be set off against the older payment demands; if costs and interest have already arisen, then payments will first be set off against the costs, then the interest, and last of all against the main payment [demand], here again first of all against the older bills.
e) The offsetting with the counterclaim is only permitted in the event of unchallenged, legally established or recognized counterclaims. The exercise of retention is only permitted in the event of unchallenged, legally established or recognized counterclaims as well as those which are based on the same contract.
a) Interest rates as set down by law shall be charged if the payment deadlines are exceeded or in the event of a subsequent deferment of payment.
b) If the buyer does not cash a cheque or a bill of exchange, or if the supplier should become aware of a considerable deterioration in the buyer’s financial situation which would endanger the claim to payment, the entire remaining debt is due for payment even insofar as bills of exchange with a later deadline are in circulation.
If the entire remaining debt is not paid immediately, the buyer’s usufructuary rights to the item delivered become null and void.
The supplier is entitled either to regain possession of the item delivered without waiving his claims up to the satisfaction thereof, or to resign from the contract.
If such circumstances become known after the conclusion of the contract but before the execution of the delivery, the supplier can refuse his service and demand the payment step by step in exchange for the delivery, even if other payment conditions and deadlines have been agreed; alternatively the supplier can demand the payment of a security.
c) If the buyer does not fulfil his payment obligations for any other reason after [having been sent] reminder[s] with the setting of an appropriate final deadline for the payment, the supplier is entitled to regain possession of the item delivered or to resign from the contract. In the event of a transaction involving payment instalments the supplier can resign from the contract under the statutory conditions provided therefor because of the arrears in payment by the buyer.
d) In the event of a resignation from the contract the supplier is further entitled to demand compensation instead of payment or the reimbursement of the expenses he has paid in vain if the supplier had previously without success set the buyer an appropriate deadline for the payment.
Insofar as the suppler demands compensation instead of payment, he is entitled to charge 25 % of the agreed purchase price as a lump-sum compensation payment without deductions.
The supplier is at liberty to demonstrate and to claim higher damages; the buyer is also at liberty to prove that damages have not arisen at all or are considerably lower that the lump-sum payment demanded.This also applies if the buyer is in arrears not only with the payment but also with the acceptance of the goods or with any other obligation to cooperate.
e) If the resignation from the contract takes place after the delivery of the goods, the supplier has a claim – in addition to the return of the goods – to payment of the transfer for use; this claim is independent beside compensation claims and the reimbursement of unsuccessful expenses.
f) All the above regulations also apply in the event of direct delivery to the ultimate client by the supplier at the request of the buyer.
5. Term of delivery
The term of delivery begins on the day on which the confirmation of the order is sent off and is regarded as having been fulfilled if the goods have left the factory by the deadline at the end of the term of delivery.
The term of delivery is extended appropriately in the event of measures within the range of industrial disputes, and in particular strikes and lock-outs, and also in the event of unforeseen obstructions such as operational breakdowns, a lack of raw materials, road-traffic delays, etc., which are beyond the supplier’s control, insofar as such obstructions demonstrably have a considerable effect on the manufacture or delivery of the item to be delivered.
This also applies if these circumstances arise for suppliers of the vendor or for sub-suppliers.
The above-mentioned circumstances are also not the responsibility of the supplier if they occur during arrears that have already arisen.
The fulfilment of the term of delivery pre-assumes the fulfilment of the buyer’s contractual obligations.
All dispatches shall take place to the best of the supplier’s judgement and at the buyer’s expense.
The supplier reserves the right to select the method of dispatch; no claims can be made against the supplier with regard to the selection he has made.
Postal deliveries below 2 kg will be sent postage paid; the supplier will reserve the invoicing of these postage charges.
7. Deliveries abroad
Deliveries abroad are subject if necessary to additional general sales conditions for export and other additional special agreements. Besides this, the Incoterms 2000 are regarded as agreed on; the supplier is at liberty to refer to them.
8. Transfer of risk and acceptance
The risk is transferred to the buyer when the goods are handed over to the forwarding agent, irrespective of whether the supplier or the buyer has commissioned the forwarding agent, and even when partial deliveries are made or the supplier has also taken on other services irrespective of any differing agreements.
If the delivery, which can be made by rail or by a transport company in accordance with the supplier’s choice, is delayed as the result of circumstances which are the responsibility of the buyer, the risk is transferred to the buyer as from the day of the readiness for dispatch; however, the supplier is under obligation to arrange those insurance policies at the request and the expense of the buyer which [the buyer] should require. Delivered goods must be accepted by the buyer even if they have slight deficiencies, irrespective of his rights resulting from Section 9 below. Partial deliveries are permissible.
If there are deficiencies in a delivery, the supplier may choose whether these shall be repaired or the deficient items replaced by the delivery of new non-deficient goods; the replaced items shall become the property of the supplier. In the event of the removal of deficiencies the supplier is under obligation to take on all the expenses which are necessary for the purpose of repairing the deficiencies, in particular transport, travel expenses, work and material costs unless these expenses are increased by the fact that the items delivered are taken to a different place other than that agreed in the contract. If the subsequent collection [of the payment] is unsuccessful, the buyer can demand resignation from the contract or a reduction in payment, whichever he prefers. No guarantee is assumed for damages which are the result of improper assembly, unsuitable care, natural wear and tear, or replacement materials, unless the fault therefor can be traced back to the supplier. Nor does the supplier accept any liability for alterations or repair work carried out improperly by the buyer or a third party without the pervious permission of the supplier.
10. Statutory period of limitations and compensation claims
a) Guarantee claims have a limitation period of one year as from the delivery of the goods.
However, the statutory limitation period is effective when the law for claims regarding deficiencies in buildings and items for building construction, for claims by the buyer under a right of recourse pursuant to Sections 478 and 479 Civil Code [Bürgerliches Gesetzbuch, BGB], or for deficiencies in building construction work prescribes longer limitation periods.
Besides this, the statutory limitation period is effective in instances of injury by the supplier to life and limb and health, in a deliberate or grossly negligent violation of his obligations, and in the event of his malicious silence regarding deficiencies.
b) There shall be no further claims to payment or compensation for expenses by the buyer, irrespective of the legal grounds therefor, in particular regarding the violation of obligations arising from the contractual obligation and from forbidden dealing about the claims set down in Section 9 above.
This however does not apply when the supplier is liable by law for obligatory reasons, e.g. pursuant to the Products Liability Act, in the event of intent or of gross negligence, regarding injury to life and limb and health, and regarding the violation of important contractual obligations.
The claim to compensation for the violation of important contractual obligations is however restricted to contract-typical, foreseeable damage unless there is intent or gross negligence or unless there is liability regarding injury to life and limb and health.
11. Reservation of the right of ownership
a) The supplier reserves the right of ownership of the goods up to the receipt of all payments as set down in this contract.
The buyer is under obligation to take good care of the goods, and in particular also to insure them at their original value against fire, water, and theft.
Any maintenance and inspection work must be carried out carefully and in due time by the buyer at his own expense.
b) In the event of distraint, seizure, or other actions by a third party, the buyer must inform the supplier immediately [thereof] in writing so as to give the supplier the possibility of exercising his rights from the reservation of the right of ownership.
In the event of a violation against this the buyer shall be liable for any deficits of the supplier.
c) The buyer is entitled to sell the goods to others in a proper business transaction; however, he hereby transfers now to the supplier all the payment demands amounting to the gross purchase price of the supplier’s payment demand, which [payments] are due to him [the buyer] from the sale. This is irrespective of whether the goods were sold to others without processing or after processing.
The client shall remain authorised to collect the payments even after assignment; the supplier’s authorisation to disclose the payment assignment and to collect the payment himself remains unaffected thereby.
This shall not take place as long as the buyer fulfils his payment obligations, does not get into arrears with his payments, and no petition is made for the commencement of composition or insolvency proceedings.
In this instance the manufacturer is under obligation to give the supplier immediately all the necessary information about his purchasers and to hand over the necessary documents and to make the disclosure of the assignment possible for the supplier.
d) The processing or reshaping of the goods by the buyer shall always be undertaken on behalf of the supplier. If the goods are processed with different items which do not belong to the supplier, the supplier shall obtain the co-ownership of the new object at the ratio of his own payment demand to the other processed items at the time of the processing.
The reservation of ownership shall continue in its full extent for the item which has been produced by the processing.
e) If the supplied goods are mixed inseparably with different items which do not belong to the supplier, he shall purchase the ownership of the new item, again at the ratio of the value of the purchased item to the other mixed items at the time of the mixing.
If the mixing takes place in such a way that the buyer’s item is regarded as the main item, the buyer shall transfer co-ownership proportionally to the supplier; the buyer shall hold the sole ownership or the co-ownership of the supplier in safe-keeping for him [the supplier].
f) If the supplied goods or objects or matters produced with the supplied goods are sold by the purchaser or are directly or in a modified way incorporated in the premises of a third party in a way that they become a major part of the premises of the third party, the claims of the purchaser against his customer or against a third party, which are in place of these matters, are assigned to the supplier in order to safeguard his claim without a special declaration of assignment being necessary.
g) The supplier shall release to the buyer on demand the securities which are due to him to such an extent that the realisable value of the securities exceeds the payment demands which are to be secured by more than 10 %; the selection of the securities to be released is to be made by the supplier.
12. Other regulations
a) Even if individual regulations of this contract should be legally ineffective, the remaining parts thereof shall remain binding; the ineffective regulation shall be replaced by such a regulation which is closest to what was economically intended.
b) The place of fulfilment and the place of jurisdiction are agreed to be the place where the supplier has his registered office insofar as the buyer is the merchant in the sense of the law; the supplier however is also at liberty to bring legal action at the place where the buyer has his registered office.
All the agreements between the supplier and the buyer must be recorded in writing. All the amendments and/or subsidiary agreements made before or after the conclusion of the contract must also be in writing.
The abolition of this requirement of the written form must also be made in writing.
c) German material law shall be effective for the legal relationships in connection with this contract, with the exclusion of the United Nations Convention on the International Sale of Goods (CISG).