§ 1 Area of applicability
1. For all deliveries, services and offers made by the seller (contractor) and those from future commercial transactions - unless any other separate agreements have been made - the following conditions apply. A counter-confirmation by the purchaser (client), with reference to their own commercial or purchasing conditions is hereby contradicted. The following terms of delivery and payment apply regardless of whether the contract offer is issued by the purchaser or by the seller. Evident errors, or calculation, printing or spelling mistakes do not obligate the seller.
2. Any deviations from these terms of delivery and payment are only effective when confirmed in writing by the seller. The invalidity of individual conditions does not affect the validity of the remaining terms. The same applies when individual conditions are not an inherent part of the contract.
§ 2 Offer and contract conclusion
1. The offers made by the seller are subject to alteration and non-binding. The seller is bound to their order for four weeks following its receipt by the seller. Declarations of acceptance and all orders must be made in writing or remotely in writing by the seller to become legally effective, unless a written offer made by the seller is accepted without alterations. Copies of the contract which have been issued to the purchaser, but which have not been countersigned by the seller, are not valid as an order confirmation.
2. The electronic form is equal to the written form with regard to validity.
3. Insofar as the purchaser retains a legal right to withdraw, a provisionally effective contractual relationship is initially formed by the order and its acceptance by the seller. In this case, the purchaser may declare their withdrawal within 14 days following receipt of the goods in writing, without giving reasons for doing so, or return the goods without giving reasons for doing so. The assignment to the post or another delivery service in due time is sufficient with regard to observance of the deadline.
4. Die Rücksendung erfolgt grundsätzlich auf Gefahr und Kosten des Verkäufers, es sei denn, dass der Bestellwert der gelieferten Ware bis zu EUR 40,00 beträgt oder wenn bei einem höheren Preis der Sache der Käufer die Gegenleistung oder eine Teilzahlung zum Zeitpunkt des Widerrufs noch nicht erbracht hat. In diesem Fall trägt der Käufer die Rückversandkosten, außer die Rücksendung erfolgt, weil falsche oder mangelhafte Ware geliefert wurde.
§ 3 Pricing
1. Unless otherwise stated, the seller is bound to the prices stipulated in their offers to purchasers 30 days from their date of issue. Of decisive importance are the prices specified in the order confirmation of the seller, plus the legally valid VAT. If a storage period of more than four months or 30 days is agreed with purchasers, the seller retains the right to transfer to the purchaser the cost increases arising in the interim for the procurement, manufacture, delivery, assembly etc., including those arising as a result of changes to the law at their corresponding level.
2. Unless otherwise agreed, the prices include delivery ex works in standard packaging within the delivery tours of the seller. Small amounts with order values under EUR 125.00 can be sent carriage forward by train or package service. If they are delivered carriage free, the seller reserves the right to charge a transport cost surcharge in an amount of at least EUR 10.00.
3. If the right to deduct a payment reduction has been granted to the purchaser in the written payment agreements, the seller - regardless of the agreements made - retains the right to refuse the price reduction if the purchaser is in arrears with other due payments requested by the seller.
4. The commissioning and assembly of delivered goods is the responsibility of the purchaser, and must be paid by them. Should the seller provide the installers required for the purpose, the valid hourly rates for travel, working and waiting times at the time of the conclusion of contract apply. With regard to the assembly work, the purchaser must provide, at their own cost, the support required by the installation staff of the seller.
5. If the seller declares their willingness to take back originally packaged, unused goods against repayment of the purchase price beyond the guarantee period, the ordering party must bear the related costs of at least 10% of the total price, unless they provide evidence to the seller of more minor damage.
6. Should customers place erroneous orders, such as in relation to the delivery quantity or delivery address, the seller retains the right to invoice the ordering party for the freight costs arising as a result of the erroneous order.
7. All prices relate to the direct processing of the commercial business without the use of mediators such as e-commerce solutions, and are given solely in euros.
8. Transfers from abroad must be made free of additional charges. Additionally, a processing fee of EUR 20.00 may be demanded by the seller.
§ 4 Delivery and performance time
1. The delivery period begins when the contract is concluded. If prior to delivery to the purchaser another design of the purchase item is requested by the purchaser, the delivery period is interrupted, and begins from the agreement regarding the other design, or can be otherwise determined by the seller. When making orders on request, this request must be submitted at the latest within 3 months from the date of the order. If this deadline expires, the seller retains the right to charge warehouse costs of EUR 7.50 per month and pallet storage space.
2. The seller retains the right to exceed non-binding delivery deadlines by up to three weeks. Only then does the purchaser have the right to set a reasonable deadline to the seller. The follow-up deadline must be set with a warning of refusal.
3. If the delivery becomes impossible or is excessively hindered by force majeure, official measures, company closure, strikes or other circumstances, including with the suppliers of the seller, the seller is released from their obligation to deliver for the duration of the hindrance and its subsequent impact. The seller shall inform the purchaser immediately should such events occur. These events also authorise the seller to withdraw from contracts.
4. In the case of non-delivery or unsatisfactory delivery of the seller on the part of their upstream supplier, the seller is released from their obligations to deliver, either partially or in full. This only applies when the necessary precautionary measures have been taken to procure the goods to be delivered by the seller, and when they have selected their upstream supplier with care. In this case, they are obliged to transfer their claims against suppliers to the purchaser on request. The seller is also authorised to delay the delivery or performance for the duration of the hindrance, with the addition of a reasonable preparation period.
If the hindrance lasts for more than three months, the purchaser retains the right, following the setting of a reasonable deadline, to withdraw from the as yet unfulfilled part of the contract. Should the delivery period be extended, or if the seller is released from their obligation, the purchaser may only demand damage compensation under the condition described in § 9 of these terms. The seller may only have recourse to the above circumstances when they have immediately informed the purchaser.
5. Insofar as the seller is responsible for the failure to observe deadlines and periods agreed as binding according to § 9 of these terms, and the other legal delayed performance conditions have been met, the purchaser may claim compensation for delay of 0.5% for every completed week of the delay, however as a maximum up to 5% of the invoice value of the delivery and performance affected by the delay.
6. The seller is authorised to make partial deliveries and performances at any time, if this is reasonable for the purchaser.
§ 5 Transfer of risk
The risk is transferred to the purchaser as soon as the seller has dispatched the goods to the person or institution responsible for delivering the goods. If delivery is rendered impossible without the seller being responsible, the risk is transferred to the purchaser when notification of readiness for delivery is sent. With regard to agreed, freight-free delivery or free assembly, the risk is also transferred to the purchaser when the goods have been unloaded. Insurance is only arranged by separate agreement. Protection devices are only included in delivery when this has been expressly agreed.
§ 6 Warranty
1. The seller provides to companies a warranty for the fault-free condition of their product for a period of one year from delivery; otherwise, for a period of two years. If a statutory expiry date is given for the goods, this date applies as the warranty period.
2. If operation or maintenance instructions issued by the seller are not observed, or changes are made to the products, parts are replaced or consumables are used which do not conform to the original specifications, no claims due to faults in the product are valid.
3. The warranty for used purchase objects is excluded if they are not consumer goods. In this case, the warranty period is 1 year.
4. Complaints due to evidently faulty or evidently deviant quality of the goods, or due to delivery of an evidently different product from the one ordered can only be asserted by the purchaser immediately, or within a week following receipt of the goods, or after the fault has become evident. Faults which cannot be detected within this period, despite careful inspection, must be reported in writing to the seller immediately after they are detected, although at the latest within three months following receipt of the object of delivery.
5. Should the purchaser provide notification that the products do not conform to the warranty conditions, the liability of the seller is initially restricted to the transfer of claims that they have in relation to the manufacturer. The seller is obliged to provide to the purchaser all the information regarding the contractual relationship to the manufacturer in question needed for the implementation of the transferred claim.
6. Should the manufacturer reject the warranty claim or fail to respond, the seller may demand, as they see fit, that either
a. the faulty part or device is sent for repairs and subsequent return to the seller, or
b. the purchaser keeps the faulty part or device and a service technician of the seller is sent to the purchaser in order to conduct repairs. Should the purchaser demand that warranty work be conducted at a location specified by them, the seller may conform to this request, whereby the parts subject to the warranty are not invoiced, while working hours and travel costs arising in addition to the standard rates of the seller are charged.
7. Should the rectification of the fault fail after a reasonable period of time, the purchaser may as they see fit demand a reduction in the price or withdraw from the contract.
8. Should a rectification of the fault be impossible due to the nature of the subject of purchase, the purchaser initially only has a claim to a replacement delivery of fault-free goods. Should this fail, they may demand a reduction in price or withdraw from the contract, as they wish.
9. The rights of the seller specified in § 6, clause 4 to 7, do not apply in cases of consumer goods purchases.
10. The seller bears no liability for wear arising over time and through use.
11. Warranty claims against the seller may be made only by the direct purchaser, and cannot be transferred.
12. If necessary, § 9 also applies in warranty cases.
§ 7 Reservation of title
1. Until all demands are met (including all outstanding balances of current accounts), which are due to the seller from the purchaser for any legal reason, the seller is granted the following securities, which they may issue on request as they see fit, insofar as the value exceeds the demands by more than 10% in the long term.
2. The delivered goods remain the property of the seller until such time as payment of the purchase price has been made in full, together with all demands due currently or in the future to the seller arising from the commercial relationship with the purchaser.
3. Should the reserved goods be mixed or blended inseparably with other goods, the seller obtains a proportion of co-ownership of the standard item which corresponds to the value of their reserved goods in relation to the value of the goods mixed with them at the point in time of mixing or blending. Through the processing of the reserved goods, the seller acquires ownership of the new item; the purchaser retains said item for the seller.
4. The purchaser must insure at their cost the goods belonging to the seller against the usual risks, and within a reasonable scope, on request, and transfer the insurance claims to the seller. The seller is also authorised to pay insurance premiums at the cost of the purchaser.
5. The purchaser is only authorised to sell the goods on, including goods produced from mixing, blending or processing, within the scope of their ordinary business operation. They do not retain the right to further disposal over these goods, in particular to their use or transfer of security. The purchaser hereby transfers all demands arising from the further sale of the reserved goods to the seller. The purchaser hereby transfers to the seller a principal partial amount, which corresponds to the minimum ownership share of the seller of the sold goods, from the demands arising from the sale of goods for which the seller has acquired co-ownership due to the mixing or blending of these goods or the goods produced as a result of processing. Should the purchaser sell goods which are co-owned or owned by the seller, together with other goods not belonging to the seller, at an overall price, the purchaser hereby transfers a primary partial amount of this total demand to the seller which corresponds to a share of the reserved goods. On condition of revocation at any time, the purchaser is authorised to withdraw the transferred demand from the further sale. They must provide the seller with the name of the debtor of the transferred demands on request, notify them of the transfer, or issue to the seller the notifications of transfer. Insofar as the purchaser fulfils their payment obligations, the seller will not disclose the transfers.
6. In cases of seizure, securing or other access by third parties to the reserved goods, which lie beyond the ordinary business activity of the purchaser, the purchaser shall refer to the ownership of the seller, and shall inform the seller of this immediately.
7. Should the purchaser act in a manner that infringes the terms - in particular, if they are in arrears with payment - the seller retains the right to withdraw the reserved goods or if necessary, to demand the transfer of the surrender claims of the purchaser against third parties. In cases of withdrawal and of seizure of the reserved goods by the seller, this does not constitute a withdrawal from the contract - unless §§ 491 - 505 of the German Civil Code (formerly the consumer credit act) apply.
§ 8 Payment
1. Unless otherwise agreed, invoices from the seller must be paid without discount 8 days following issue of the invoice. Here, no due date agreement is made. The invoice is due for payment immediately on receipt. The seller determines which liabilities of the purchaser are offset by partial payments. The seller retains the right, despite any deviating conditions of the purchaser, to initially offset these against older debts, and will inform the purchaser regarding the nature of the offset made. If costs and interest have already been accrued, the seller retains the right to first offset the payment against the costs, then against the interest, and finally against the main claim.
2. A payment is only regarded as having been made when the seller has access to the amount. Instructions for payment, cheques or exchanges are only accepted following a separate agreement, and only when all collection and financing costs are included in the calculation. Discounts and extensions are not classified as fulfilment.
3. Should the purchaser fail to conform with the agreed payment period, the seller retains the right to calculate interest, from the point in time in question, of at least 8 percentage points (with consumer transactions of at least 5 percentage points) over the basic interest rate, in accordance with § 247 of the German Civil Code. They must then be set lower when the purchaser provides evidence of a lower charge; evidence of higher loss by the seller is permissible.
4. Should the purchaser remain in arrears for longer than 10 days with regard to their approval of the subject of purchase, or issue of the dispatch address, or fulfilment of their payment obligations, or provision of the agreed security following notification of readiness, the seller retains the right, following the specification of a reasonable follow-up period, to claim for approval or demand damage compensation in lieu of performance. In the latter case, the seller, regardless of the opportunity for asserting higher actual loss, may demand 15% of the sale price as compensation without evidence, unless the purchaser provides evidence of lesser loss.
5. Should circumstances become known to the seller which place in question the creditworthiness of the purchaser, and which arise only after the contract has been concluded, or which without their responsibility become known only after conclusion of contract, particularly when the commissioned credit institution fails to redeem a cheque of the purchaser, or the purchaser halts their payment, the seller retains the right to demand the payment of the entire remaining debt, even if they have accepted cheques or exchanges with a later due date. The seller is in this case also authorised to demand pre-payments or security payments. A legal right to withdrawal by the seller remains unaffected.
6. When payments by instalment are agreed, the purchaser issues their acceptance of the entire purchase price with a view to performance. The seller retains the right to also use these to cover all claims due to them. Should an instalment not be paid in due time by the purchaser, the entire purchase price falls due immediately. Should the entire remaining debt not be paid immediately in such a case, the seller retains the right to retake possession of the goods, without thereby declaring their withdrawal from the contract. A legal right to withdrawal by the seller remains unaffected. Should the right to withdrawal be implemented by the seller, the level of payment for use and possible replacement for damages that are due to the seller from the purchaser may also be determined in a binding manner by an estimate requested by the seller made by an estimating body to be appointed by the seller. The payment for use and the compensation for damage are calculated in this case from the difference between the sale price and the estimated price.
7. If an order placed by the purchaser must be delivered in portions, for reasons for which the seller is responsible, the delivery date of the last partial deliveries, or the date of the credit for the goods that have been calculated but not delivered is regarded as the invoice date.
8. The purchaser is only authorised to offset when their counterclaims have been legally acknowledged or are undisputed. However, the purchaser is only authorised to retain goods on the basis of counterclaims arising from the same contractual relationship.
§ 9 Limitation of liability
1. The right of the purchaser, in the case of a delay in performance by the seller, to demand damage compensation for the impossibility of providing the performance for which the seller is responsible, the positive contractual infringement, culpability on conclusion of contract or in the case of criminal activities, is excluded in the case of the negligent and slightly negligent infringement of insignificant contractual obligations.
2. In the case that
a. the slightly negligent infringement of significant contractual obligations, and
b. the intentional or grossly negligent infringement of contractual obligations through direct vicarious agents (not legal representatives or managing employees) liability is limited to damages typical for the contract, the level of which can be foreseen.
3. Liability for damages arising from the infringement of an obligation arising from the contractual relationship is excluded in all cases, unless it relates to a particular case of infringement of trust, intent or grossly negligent behaviour.
4. The above liability limitations and disclaimers of liability only apply to damage not affecting life, body or health.
§ 10 Repairs
These terms of delivery and payment apply analogously to all repairs in the workshop of the seller, and for repairs conducted at the purchaser.
§ 11 Applicable legislation, place of jurisdiction, partial invalidity
1. For these terms of delivery and payment, and for all legal relations between the purchaser and the seller, the law of the Federal Republic of Germany applies. The applicability of the UN purchasing legislation is expressly excluded.
2. The place of fulfilment is Ahrensfelde / OT Blumberg.
3. In the case of § 9 (3), the place of jurisdiction is the place of fulfilment of the supplier in question. Otherwise, the place of jurisdiction is the local district court of the place of fulfilment in accordance with § 11, clause 2, or the locally responsible district court of the seller companies concluding the contract, insofar as the purchaser is a registered trader, a legal entity under public law or a special fund under public law. The seller may raise claims as they wish with the district court, even if the federal state law were to be responsible for claims arising from the level of the disputed value.
4. The seller stores personal data in compliance with the German Federal Data Protection Act.
5. Should one clause in these terms of delivery and payment, or a clause within the framework of other agreements, be or become invalid, the validity of the remaining clauses or agreements remains unaffected.