Individually agreed provisions within the contractual relationship shall take precedence over the General Terms and Conditions of Business. If individual provisions are found to be ineffective, the remaining provisions shall remain effective.
The purchaser’s general terms and conditions are only valid if they have been brought to the supplier’s attention in good time and if they do not conflict with the provisions of the individual contract or the following provisions and have been accepted in writing by the seller.
1. Orders and order acceptance
(1) All orders placed with the supplier by the purchaser, either directly or via sales representatives, must be accepted by written order confirmation, unless they are in the form of a cash transaction.
(2) Any deviations in the ordered or delivered articles from the order, in particular with regard to material and execution, are expressly reserved within the scope of technical improvement.
2. Delivery period
(1) If a delivery period has been agreed upon or is required, the following shall apply:
The delivery dates stated by the supplier shall not be binding unless they have been expressly confirmed in writing by the supplier as being “binding delivery dates”.
(2) Delivery by the supplier is subject to the supplier’s sub-supplier delivery. The supplier shall notify the purchaser immediately if he is not supplied.
The purchasing contract is deemed not to have been concluded if the supplier has not been supplied. The supplier does not assume any procurement risk.
(3) The prerequisites for compliance with the delivery period are timely fulfilment of the contractual obligations assumed by the purchaser, in particular, the fulfilment of the agreed payments and, where applicable, the provision of the agreed collateral and the handover of plans or samples.
(4) Moreover, in the event of a delay for which the supplier is responsible, the purchaser shall only be entitled to claim further rights once an extended deadline set by him following the initial delay has unsuccessfully expired at least three weeks beforehand.
(1) If dispatch of the goods ordered is required, this shall be effected from the supplier’s registered office at the seller’s expense and the purchaser’s risk. In the absence of any special agreements, the supplier is free in making its choice of transport company and means of transport.
(2) If dispatch is delayed due to circumstances attributable to the purchaser, the risk shall already pass to the purchaser at the time of readiness for dispatch. The costs resulting from the delay (storage costs, in particular) shall be borne by the purchaser.
(3) The supplier shall not be obliged to insure the consignment or have it insured against transport damage unless the supplier has assumed a corresponding obligation in writing.
4. Liability for faults
(1) The purchaser is obliged to inspect the goods delivered immediately following delivery and to notify the supplier in writing of any existing defects without delay (at the latest, by the next plus one working day following delivery). Defects that are reported late, i.e. contrary to the above obligation, will not be considered by the supplier and are excluded from warranty.
(2) In the event of a defect, the goods may only be returned to the supplier with the supplier’s prior consent. Returns made without the supplier’s prior consent do not have to be accepted by the supplier. In this case, the purchaser shall bear the costs of return.
(3) In the event that rework is performed or a replacement delivery is made on the basis of a justified notice of defect, the provisions regarding the delivery time shall apply accordingly.
(4) The existence of such a defect, which has been established and notified by an effective notice of defect, gives rise to the following rights on the part of the purchaser:
(5) In the event of a defect, the purchaser shall initially have the right to demand subsequent performance from the supplier.
The right to choose whether the goods are to be replaced or the defect is to be remedied shall be at the supplier’s discretion.
(6) In addition, the supplier shall have the right to carry out further subsequent performance, again at his own discretion, in the event that the first attempt at subsequent performance is unsuccessful.
Only if the repeated subsequent performance also fails shall the purchaser have the right to withdraw from the contract or to reduction of the purchasing price.
(7) The purchaser may only demand damages or compensation for futile expenses in cases of gross negligence or intentional violation of the obligation to deliver defect-free goods. He must prove the reason for and the amount of the damage incurred. The same applies to futile expenses.
(8) The warranty period for new goods is one year from delivery. The purchaser must prove in each case that the defect had already existed at the time of delivery.
Used goods shall be sold as seen, with the exclusion of any warranty.
5. Liability for breach of duty by the supplier
(1) Notwithstanding the provisions regarding warranty and other special agreements contained in these provisions, the following shall apply in the event of a breach of duty by the supplier:
(2) The purchaser shall grant the supplier a reasonable period of grace to remedy the breach of duty, which shall be no less than three weeks.
The purchaser may only withdraw from the contract and/or claim damages following the unsuccessful expiry of the grace period.
(3) The purchaser may only claim damages in cases of gross negligence or wilful breach of duty by the supplier. Compensation in lieu of performance (in the event of non-performance, Section 280 III in conjunction with Section 286 of the Civil Code) is limited to the negative interest, compensation for non-performance or improper performance (Section 282 of the Civil Code), up to the amount of the purchase price. Compensation in lieu of performance is hereby excluded in the event of exclusion of the obligation to perform (impossibility).
(4) If the purchaser is solely or predominantly responsible for the circumstances that would entitle him to withdraw, or if the circumstances entitling him to withdraw occurred during the purchaser’s delayed acceptance, withdrawal shall be excluded.
6. Exclusion of procurement risk and guarantees
The supplier does not assume any procurement risks for ordered items that cannot be immediately delivered. Acceptance of guarantees of any kind is excluded unless an express, written agreement has been concluded with the purchaser.
Prices shall be calculated in euros from the supplier’s registered office and include the applicable VAT.
8. Payment conditions
(1) All invoices issued by the supplier are to be paid net and in cash. A cash discount deduction requires a prior written agreement.
(2) If the deadline for payment is not met and once a reminder has been issued, default interest of 8% above the German Central Bank’s respective base interest rate shall be payable on the invoiced amount.
(3) Bills of exchange shall only be accepted as payment by prior written agreement. Discounting charges shall be charged to the supplier from the due date of the claim, irrespective of the date on which the bill of exchange was accepted. The supplier does not assume any guarantee for timely collection or protest.
(4) If bills of exchange or cheques are not credited on time by the drawee, all other existing claims of the supplier against the purchaser shall fall due at this time. Any other existing terms of payment expire. The same applies in the event that a claim has not been paid by the due date.
(5) With the exception of undisputed or legally established claims, the withholding of payment or offsetting any counter-claims of the purchaser is excluded.
(6) All claims of the supplier against the customer, irrespective of the legal relationship, are due for payment under conditions that entitle the supplier to withdraw from the contract in accordance with statutory or contractual provisions.
9. Retention of title
(1) All goods delivered by the supplier shall remain the supplier’s property until the purchase price has been paid in full and all claims resulting from the business relationship have been settled (extended retention of title).
Any disposal of the goods subject to retention of title by the purchaser is only permitted in the regular course of business of the purchaser. Under no circumstances may the goods be transferred to third parties as collateral within the framework of regular business transactions.
(2) In the event of sale of the goods in the regular course of business, the purchase price paid shall take the place of the goods. The purchaser hereby assigns all claims arising from any sale to the suppliers. The purchaser is authorised to collect this claim as long as he meets his payment obligations towards the supplier. Taking into account the extended retention of title (assignment in advance of the respective purchase price claim), an assignment to third parties, in particular to a bank, is contrary to the contract and therefore not permitted. The supplier shall be entitled at any time to examine the purchaser’s sales documents and to inform his customers of such assignment.
(3) If the purchaser’s claim from the resale has been included in a current account, the purchaser hereby also assigns his claim against his customer resulting from the current account to the supplier. The assignment shall amount to the sum which the supplier had charged the purchaser for the resold, reserved goods.
(4) In the event of seizure of the goods by the purchaser, the supplier must be immediately informed by sending a copy of the enforcement record and an affidavit that the seized goods are the goods delivered by the supplier and subject to retention of title.
(5) If the value of the collateral in accordance with the above paragraphs of this clause exceeds by more than 20% the amount of the outstanding claims thus secured for the foreseeable future, the purchaser shall be entitled to demand release of collateral from the supplier to the extent that such an excess exists.
(6) The assertion of the supplier’s rights arising from the retention of title shall not release the purchaser from his contractual obligations. The value of the goods at the time of taking them back shall only be credited against the supplier’s existing claim against the purchaser.
10. Supplier’s right of withdrawal
The supplier is entitled to withdraw from the contract for the following reasons:
(1) If it emerges, contrary to the assumptions made prior to the conclusion of the contract, that the purchaser is not creditworthy. Credit unworthiness can be assumed without further procedures in the event of a bounced bill or cheque, suspension of payment by the purchaser or an unsuccessful enforcement attempt against the purchaser. This may not necessarily be linked to relations between the supplier and the purchaser.
(2) If it turns out that the purchaser has made incorrect statements with regard to his creditworthiness and that these statements are of considerable importance.
(3) If the goods subject to retention of title by the supplier are sold in a different way than in the purchaser’s regular course of business, in particular through transfer by way of securing or pledging. Exemptions from the above shall only exist if the supplier has given his written consent to the sale.
11. Place of fulfilment and jurisdiction
(1) The place of fulfilment shall be the supplier’s registered office.
(2) If the purchaser is a company or a legal entity under public law or a special fund under public law, the location of the supplier’s registered office shall be the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. All obligations arising from the contractual relationship shall be deemed to be fulfilled at the supplier’s place of business.
(3) In all cases, in particular in the case of cross-border deliveries, the law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
Keltern, 2 January 2013