General Terms of Delivery and Payment
(This is an excerpt. The full version can be requested at any time.)
The following General Terms and Conditions only apply to entrepreneurs as defined in Section 310 of the Civil Code (BGB). All contracts, deliveries, and other products and services, including consulting services, information, and similar take place based on these Terms and Conditions.
2. Exclusive validity of these Terms and Conditions
All deliveries, products, and services take place exclusively based on these Terms and Conditions. They shall also apply to all future business relationships, even if they are not explicitly agreed upon again. Conditions imposed by the buyer and purchaser do not constitute obligations for us, even if we – the suppliers – do not object to them explicitly once again after receipt by us.
Other Terms and Conditions shall only constitute obligations for us if we explicitly consent to them in writing.
3. Changes to the contract or its Terms and Conditions
4. Scope of deliveries, products, and services, quotes and project planning
4.1. For the scope of the delivery, the written order confirmation from the supplier shall be authoritative. In the case of a written quote from the supplier with binding time requirements and punctual acceptance, the quote shall be authoritative unless a timely order confirmation is provided.
5. Price, payment deadlines and terms, right to offset and right of retention
6. Retention of title
6.1. We shall retain ownership to all goods delivered by us until full payment has been made. In this context, all deliveries shall be viewed as a contiguous delivery transaction. For continuous invoices, the reserved property shall serve as security for our balance claim. If the country in which the delivery item is located does not permit retention of title, but allows the supplier to reserve other rights to the delivery item, we reserve the option to exercise all rights of this nature. The purchaser shall, at his own expense, undertake to implement all measures necessary to ensure and maintain the validity of the retention of title, or another right to the delivery item in its stead. We reserve the right to insure the delivery item at the purchaser’s expense against theft, breakage, fire, water, and other damages, unless the purchaser himself is able to provide proof of such insurance with the coverage we are entitled to from the contract entered into.
The purchaser shall undertake to protect our property/joint property with the diligence of prudent businessman against spoilage, diminution, or loss, also where his buyers are concerned.
The purchaser is only permitted to sell, or dispose of in some other fashion, goods which we have retained the title to or are under our joint ownership, in proper business transactions. Claims arising from the resale or other legal grounds with regard to the retained goods are hereby ceded to us by the purchaser in full and with all ancillary rights by way of security. The purchaser is not permitted to pawn nor transfer the delivery item as a security.
6.2. Processing and transformation shall always take place on our behalf, but do not result in obligations for us. If the goods are combined by the purchaser with other items into a single item, and this other item is to be seen as the main item, the purchaser shall undertake to transfer to us co-ownership on a pro-rata basis, provided the main item belongs to him. The purchaser shall store our property or joint property at no charge. If the purchaser resells the delivered good as intended, he hereby cedes to us all claims arising from the sale against his buyer with all ancillary rights up until full payment of all our claims.
6.3. The purchaser is to notify us without delay in the case of seizure or confiscation or other deferment by third parties.
6.4. We shall release the securities held by us to the extent that their value exceeds the claims to be secured by more than 20%. The securities to be released shall be selected at our discretion.
6.5. If the purchaser is in violation of the contract, particularly in the case of a default in payment, we shall be entitled to the return of the delivery item at the purchaser’s expense. This shall take place after a single request, and the purchaser shall undertake to release the item. Where applicable, the cession of the claims for release on the part of the purchaser against third parties may be requested. Our right to demand compensation remains unaffected.
6.6. The assertion of the retention of title as well as the seizure of the delivery item or the demand that it be returned in the case of a default in payment shall not constitute withdrawal from the contract. The purchaser is liable for all damages that we incur from the assertion of the retention of title as a result of the retraction of the delivery item. If the delivery item has been used, we shall, without needing to provide proof of damage, be entitled to charge a diminution in value of 25% for the first half year of use and to a diminution of 10% for each additional half year or part thereof, at the expense of the purchaser. In addition, the purchaser shall bear any costs exceeding the diminution in value for the restoration item to a “new” condition. However, the purchaser is entitled to provide proof that our incurred damages are significantly lower than the flat rate.
7. Deadlines for deliveries and products/services, consequences of default, and compensation
8. Delivery, transfer of risk, and duty to notify of defects
9. Liability for defects, purchaser’s cooperation obligations, warranty periods
9.1. Our warranty covers defects in the delivery items and warranted characteristics for the duration of 12 months. This does not apply if the breach of duty was brought about intentionally or negligently. Furthermore, Sections 444 and 479 of the Civil Code (BGB) remain unaffected.
9.2. The beginning of the warranty period shall be defined according to statutory regulations:
– From the day of handover for deliveries, – From the day of acceptance for installation services by the supplier.
Longer periods than the statutory periods shall only apply if we have specifically indicated them and when the warranty of our supplier exceeds them. Any warranty claims from such deliveries are to be asserted against our suppliers. For machines and machine parts that are utilised in multiple-shift operation, the warranty period shall be shortened to six months. The aforementioned periods also apply in cases where the parts are not affected by apparent defects. After the 12-month period has elapsed, all warranty claims shall be considered null and void.
9.3. It is the purchaser’s duty to inspect parts which he does not subject to immediate commissioning for hidden defects within the 12-month period, and/or to test the part within the limits of its intended use.
9.4. If a specified period is invalid or a particular case is not regulated, a maximum period of 12 months shall apply beginning with the delivery of the parts to the purchaser.
10. Scope of warranty
11. Claims for damages
11.1. Claims for damages from positive claim infringement, encumbrance with debts upon entering into the contract, and illicit acts shall not be entertained unless the damages were caused by intentional or grossly negligent behaviour. Claims for damages due to the loss of life, bodily harm, or injury to health as well as claims according to the Product Liability Act remain unaffected.
11.2. If we have negligently violated an essential obligation necessary for the fulfilment of the purpose of the contract, the liability amount is limited to the damages typical for comparable transactions of this nature which were foreseeable upon entering into the contract, or later upon commitment of the breach of duty, verbatim Section 444 BGB. This applies both to damages to the purchaser’s property, financial losses, e.g. loss of profit, as well as for other conceivable damages, excluding injury to persons.
11.3. This limitation of liability applies to the same extent to the supplier, as well as to bodies and executives. For assistants and vicarious agents as well as other employees of the supplier, this disclaimer of liability applies accordingly.
11.4. For claims for damages resulting from default, 7.3. and 7.4. of these Terms and Conditions shall take precedence.
11.5. In the case of impossibility, the same applies as in the case of default, but with the stipulation that the compensation is limited to 30% of the order value. For the amount exceeding this value, subsection 1 of this section applies without restriction.
11.6. Where damages are incurred due to the use of defective parts, the supplier shall be entitled to refer the purchaser to claims for damages against his subcontractor if subsection 11.1 of this section does not already apply. This shall not apply if the purchaser does not belong to the group of persons specified in Section 310 of the Civil Code (BGB) or there exists gross negligence or intent on the part of the supplier.
11.7.For damages arising from loss of profits or business interruption, liability according to subsection 11.6. shall only exist if the exclusion of liability pursuant to 11.1. does not already apply.
12.Force majeure, exemption from delivery obligations
13.1.If it becomes apparent after entering into the contract that our entitlement to consideration is endangered due to the purchaser’s inability to provide compensation, in particular due to the fact that the purchaser has exceeded his credit limit or unpaid, overdue invoices, we shall be entitled to decline fulfilment of the contract until the purchaser provides compensation or security in lieu of it. We shall be entitled to withdraw from the contract if we have, without success, provided the purchaser with a reasonable grace period for providing the compensation or security.
13.2.If a contractual partner discontinues his payments, or if an application is submitted for bankruptcy proceedings regarding his assets, court proceedings, or out-of-court proceedings, the other party is entitled to withdraw from the contract for the unfulfilled portion. An application for initiating bankruptcy proceedings entitles us to withdraw from the contract and to demand the immediate return of the delivery item.
13.3.If a provision of these conditions and the other agreements made should be or become unenforceable, the validity of the remainder of the contract shall not be affected. The contractual partners shall undertake to replace the invalid provision with one that most closely approximates its economic success.
13.4.The laws of the Federal Republic of Germany shall apply exclusively, unless otherwise agreed upon. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
13.5.When reviewing the commensurability of these provisions, it should be taken into account that the supplier supplies almost exclusively merchants as defined by Section 310 of the Civil Code (BGB) and a large percentage of the parts delivered are not of its own manufacture; hence, a limitation on liability and warranty with regard to these parts therefore appears reasonable. In particular, it should also be taken into account that the supplier himself is only supplied under comparable terms of delivery.
13.6.In cases where Section 310 of the Civil Code (BGB) was referenced in the aforementioned provisions, this refers to the entrepreneurial nature of the purchaser and the prerequisite that the contract belongs to the operation of the purchaser’s trading activities.
13.7.The place of jurisdiction is Frechen when the purchaser belongs to the group of persons specified in Section 310 of the Civil Code (BGB) or does not have a general domestic place of jurisdiction or has relocated his place of residence or habitual abode from a domestic address after the contract was entered into, or his place of residence or location is not known at the point the lawsuit is filed. The supplier is also entitled to file lawsuits at the domicile of the purchaser’s head or branch office.
13.8.We reserve the right to save and process all data on the purchaser received within the context of the fulfilment of the contract in accordance with the regulations of the Federal Data Protection Act for our own purposes.