I. Scope of the delivery or service
1. All deliveries and services shall be based on these General Terms and Conditions and any separate contractual agreements. Deviating terms and conditions of purchase of the buyer shall not become part of the contract even if the order is accepted. In the absence of a special agreement, a contract is concluded with the supplier’s written order confirmation.
2. Protective devices shall be supplied insofar as this is prescribed by law or expressly agreed.
3. The regulations of the Verband der Elektrotechnik, Elektronik und Informationstechnik (VDE) shall apply to a delivery or service insofar as they are relevant to the safety of the deliveries or services. Deviations are permissible insofar as the same safety is guaranteed by other means.
4. The supplier reserves the property rights and copyrights to samples, cost estimates, drawings and similar information of a physical and non-physical nature. They may only be made accessible to third parties with the prior consent of the supplier. Drawings and other documents belonging to offers must be returned immediately upon request if the order is not placed with the supplier. The first and second sentence shall apply accordingly to the purchaser’s documents. The supplier undertakes to make information and documents designated as confidential by the purchaser accessible to third parties only with the purchaser’s consent. However, consent shall already be deemed to have been granted if the supplier has transferred deliveries or services in a permissible manner.
5. Collateral agreements shall only be effective if they have been confirmed in writing.
II Price and payment
1. The prices apply to delivery without installation or assembly ex works excluding packaging. The prices are exclusive of value-added tax at the statutory rate.
2. In the absence of a special agreement, payment shall be made without any deduction to the supplier’s account. A payment shall only be deemed to have been made when it has been credited to one of the supplier’s bank accounts.
3. In the event of default, the supplier shall be entitled to demand interest in the amount of 8 percentage points above the base interest rate in accordance with § 247 BGB. The right of the supplier to claim higher damages remains unaffected.
4. The purchaser shall only be entitled to withhold payments or offset them against counterclaims insofar as his counterclaims are undisputed or have been legally established.
III Deadline for deliveries and services
1. The agreements between the contracting parties shall be decisive with regard to the deadline for deliveries or services. A prerequisite for the commencement of the period is the receipt of all documents to be supplied by the customer, necessary authorisations, releases, timely clarifications and approval of the plans, as well as compliance with the agreed terms of payment and other obligations.
2. The deadline shall be deemed to have been met:
a) In the case of delivery without installation or assembly, if the ready-to-operate consignment has been dispatched or collected within the agreed delivery or performance period. If delivery is delayed for reasons for which the customer is responsible, the deadline shall be deemed to have been met upon notification of readiness for dispatch within the agreed deadline;
b) In the case of delivery with installation or assembly, as soon as this has taken place within the agreed period.
3. The delivery period shall be extended appropriately in the event of industrial disputes, in particular strikes and lockouts, war, riots and the occurrence of unforeseen obstacles that are beyond the supplier’s control. The supplier shall inform the purchaser of the beginning and end of such circumstances as soon as possible.
4. If the supplier is in default of performance in whole or in part, the purchaser’s compensation for damages and expenses due to default shall be limited to 0.5% of the price for the part of the service that cannot be used due to the delay for each completed week. The liability for delay is limited to a total of 5% of the price of that part of the deliveries or services which could not be put to the intended use due to late completion of individual associated items. This shall not apply if the delay is due to gross negligence or intent on the part of the supplier. The purchaser’s right to withdraw from the contract after the fruitless expiry of a grace period granted to the supplier shall remain unaffected.
5. If dispatch or delivery is delayed at the request of the purchaser, the purchaser may be charged a storage fee of 0.5% of the invoice amount for each month or part thereof, starting one month after notification of readiness for dispatch. The storage fee shall be limited to 5% of the invoice amount, unless higher costs are proven.
IV. Transfer of risk and acceptance
1. The risk shall pass to the buyer, even if carriage paid delivery has been agreed:
a) In the case of delivery without installation or assembly, when the ready-to-use consignment has been dispatched or collected. Packaging shall be carried out with the utmost care. Dispatch shall be at the supplier’s best judgement. At the request and expense of the purchaser, the supplier shall insure the consignment against breakage, transport and fire damage.
b) In the case of delivery with installation or assembly, on the day of acceptance in the purchaser‘s own works; if trial operation has been agreed, after faultless trial operation. It is assumed that the trial operation or the takeover into own operation immediately follows the installation or assembly ready for operation. If the purchaser does not accept the offer of a trial run or takeover at his own premises, the risk for the period of delay shall pass to the purchaser 14 days after this offer.
c) If dispatch, delivery, the start or performance of installation or assembly is delayed at the request of the purchaser or for reasons for which the purchaser is responsible, the risk shall pass to the purchaser for the duration of the delay. However, the supplier is obliged to take out the insurance requested by the purchaser at the pruchaser‘s request and expense.
2. Delivered items, even if they have minor defects, are to be accepted by the purchaser without prejudice to his warranty rights.
3. Partial deliveries are permissible.
V. Retention of title
1. Ownership of the delivered goods shall remain with the supplier until full payment of all due and future claims, including ancillary claims. If assembly services are to be provided, ownership of the delivery item shall only be transferred to the purchaser after receipt of the assembly fee or the part of the payment corresponding to the assembly service.
2. The purchaser may only sell, pledge or assign the delivery item as security with the prior written consent of the supplier. In the event of seizure, confiscation or other dispositions by third parties, the purchaser must inform the supplier immediately.
3. If goods subject to retention of title are processed by the purchaser into a new movable item, the processing shall be carried out for the supplier without the supplier being obliged to do so. The new item shall become the property of the supplier. In the event of processing, mixing or blending with goods not belonging to the supplier, the supplier shall acquire co-ownership of the new item in the ratio of the value of the delivery item to the other processed items at the time of processing.
4. In the event of breach of contract by the purchaser, in particular in the event of default in payment, the supplier shall be entitled to take back the delivery item after a reminder and the purchaser shall be obliged to surrender it. The assertion of the retention of title and the seizure of the delivery item by the supplier shall not be deemed a cancellation of the contract.
5. The purchaser’s authorisation to sell, process or install goods subject to retention of title in the ordinary course of business shall end upon revocation by the seller as a result of a sustained deterioration in the purchaser’s financial situation, but at the latest upon his suspension of payments or upon the application for or opening of insolvency proceedings against his assets.
6.a) The purchaser hereby assigns to the supplier the claims with all ancillary rights arising from the resale of the reserved goods – including any balance claims.
b) If the goods have been processed, mixed or blended and the supplier has acquired co-ownership in the amount of its factor value, it shall be entitled to the purchase price claim in proportion to the value of its rights to the goods.
c) If goods subject to retention of title are installed in a property by the purchaser, the purchaser hereby assigns the resulting claim for remuneration in the amount of the factor value of the goods subject to retention of title with all ancillary rights, including such rights to the granting of a security mortgage with priority over the rest. If the purchaser has sold the claim within the framework of genuine factoring, the supplier’s claim shall become due immediately and the purchaser shall assign the claim against the factor taking its place to the supplier and shall forward its sales proceeds to the supplier without delay.
d) The supplier accepts these assignments.
7. The purchaser is authorised to collect the assigned claims as long as he meets his payment obligations. The authorisation to collect shall expire in the event of revocation, but at the latest in the event of default in payment by the purchaser or in the event of a significant deterioration in the purchaser’s financial situation. In this case, the supplier is hereby authorised by the purchaser to inform the customers of the assignment and to collect the claims itself. Upon request, the purchaser shall be obliged to provide the supplier with a precise list of the claims to which the purchaser is entitled, including the names and addresses of the customers, the amount of the individual claims, invoice date, etc., and to provide the supplier with all information necessary for the assertion of the assigned claims and to permit the verification of this information.
8. If the factor value of the security existing for the supplier exceeds the supplier’s total claims including ancillary claims (e.g. interest, costs) by more than 20%, the supplier shall be obliged to release security of the supplier’s choice at the request of the purchaser or a third party affected by the supplier’s excess security.
9. The customer shall store the reserved goods for the supplier free of charge. He shall insure them against the usual risks such as fire, theft and water to the customary extent. The purchaser hereby assigns to the supplier its claims for compensation to which it is entitled against insurance companies or other parties liable for compensation as a result of damage of the aforementioned kind, in the amount of the factor value of the goods. The supplier accepts this assignment.
10. All claims as well as the rights arising from the retention of title to all special forms specified in these terms and conditions shall remain in force until full release from contingent liabilities which the supplier has entered into in the interest of the customer.
VI. Material defects
1. The statutory provisions shall apply to the rights of the customer in the event of material defects and defects of title, unless otherwise stipulated below.
2. The basis for liability for defects is primarily the agreement reached on the quality of the goods. All product descriptions that are the subject of the individual contract shall be deemed to be an agreement on the quality of the goods.
3. The customer’s claims for defects presuppose that he has fulfilled his statutory obligations to inspect and give notice of defects (§ 377, 381 HGB). If a defect is discovered during the inspection or later, the supplier must be notified of this in writing without delay. The notification shall be deemed immediate if it is made within 2 weeks. Irrespective of this obligation to inspect and give notice of defects, the purchaser must notify the supplier in writing of obvious defects (including incorrect and short deliveries) within 2 weeks of delivery. Timely despatch of the notification shall suffice to meet the deadline. If the purchaser fails to properly inspect the goods and/or give notice of defects, the supplier shall not be liable for the unreported defect.
4. No claims for material defects shall exist for only insignificant deviations from the contractual quality. Claims for material defects are excluded if the deviation from the contractual quality is due to excessive or improper use or natural wear and tear. The same applies to such deviations that arise due to special external influences that are not stipulated in the contract.
5. If the delivered item is defective, the supplier may initially choose whether to provide fulfilment by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). Subsequent fulfilment shall take place within a reasonable period of time. The interests of the customer shall be given due consideration in the choice.
6. The supplier is entitled to make the subsequent fulfilment owed dependent on the purchaser paying the purchase price due. However, the purchaser shall be entitled to retain a reasonable part of the price in proportion to the defect.
7. The purchaser must give the supplier the time and opportunity required for the subsequent fulfilment owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the purchaser shall return the defective item in accordance with the statutory provisions.
8. The supplier shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, if a defect actually exists. However, if a request by the purchaser to remedy a defect proves to be unjustified, the supplier may demand compensation from the purchaser for the resulting damage.
9. In urgent cases, e.g. if operational safety is jeopardised or to prevent disproportionate damage, the purchaser shall have the right to remedy the defect himself and to demand compensation from the supplier for the expenses objectively necessary for this purpose. The supplier must be notified immediately, if possible in advance, of any such self-remedy. The right of self-remedy does not exist if the supplier would be entitled to refuse a corresponding subsequent fulfilment in accordance with the statutory provisions.
10. If the rectification of defects fails or cannot be carried out for other reasons, the purchaser may, subject to the statutory requirements, reduce the remuneration, withdraw from the contract and demand compensation for damages or expenses in accordance with Section VII. The customer shall exercise his right to choose within a reasonable period of time. In the case of an insignificant defect, however, there is no right of cancellation.
11. Claims due to a material defect shall lapse within one year of delivery. The statutory periods shall remain unaffected insofar as the law prescribes longer periods for buildings and items for buildings, as well as in the event of an intentional or negligent breach of duty by the supplier, in particular by its legal representatives or vicarious agents, in the event of fraudulent concealment of a defect and in cases of injury to life, limb or health.
12. The provisions for the right of recourse of §§ 478, 479 BGB remain unaffected.
13. The warranty for material defects of used delivery items is excluded. This shall not apply in the event of a fraudulently concealed defect or the breach of a guarantee.
VII. Liability
1. Unless otherwise provided for in these General Terms and Conditions, including the following provisions, the supplier shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
2. The supplier shall be liable for damages – irrespective of the legal grounds – in the event of intent and gross negligence. In the case of simple negligence, the supplier shall only be liable
a) For damages resulting from injury to life, body or health;
b) For damages arising from the breach of a material contractual obligation (an obligation whose fulfilment is essential for the proper performance of the contract and on whose compliance the contractual partner regularly relies and may rely). In this case, however, liability shall be limited to compensation for foreseeable, typically occurring damage.
3. The limitations of liability resulting from Clause VII.2. shall not apply if the defect was fraudulently concealed or a guarantee for the quality of the goods was assumed. The same applies to claims of the purchaser under the Product Liability Act.
VIII. Statute of limitations
All claims of the purchaser shall become time-barred within one year of delivery. The statutory periods shall apply to intentional or fraudulent behaviour and to claims under the Product Liability Act. They shall also apply to defects in a building or to delivery items that have been used for a building in accordance with their normal use and have caused its defectiveness.
IX. Export
In the case of cross-border deliveries or services, the purchaser shall bear the customs duties and fees and other charges incurred, unless otherwise agreed in individual contracts.
X. Applicable law, place of jurisdiction
1. The legal relationship between the supplier and the purchaser shall be governed by the law of the Federal Republic of Germany to the exclusion of all international and supranational contract law systems, in particular the UN Convention on Contracts for the International Sale of Goods.
2. If the purchaser is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the supplier’s registered office in Herford. However, the supplier shall also be entitled to file a lawsuit at the purchaser’s general place of jurisdiction.
3. Insofar as these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole.