GENERAL TERMS OF BUSINESS
(1) Exclusively the terms of business set out below shall apply for all supplies and other services, inasmuch as the orderer is an entrepreneur, public sector legal entity or public law special trust (§310(1) BGB [German Civil Code]).
(2) Terms and conditions that conflict with or differ from our terms of business shall only be binding on us provided we have explicitly approved them in writing (in text form).
(3) A written contract or our written confirmation shall be authoritative as regards the content of ancillary agreements and supplements to our terms of business. If the orderer is not placing its first order, it shall be deemed to have acknowledged our terms of business with every subsequent order, without the need for us to refer to them in each individual instance.
2. Contract conclusion
(1) Our quotations shall be subject to change without notice and shall be non-binding.
(2) In ordering the goods, the orderer shall be deemed to have made a binding offer to contract. Unless indicated otherwise by the order, we shall be entitled to accept this offer to contract within two weeks of its receipt.
(3) Acceptance may be declared either in writing, for example via an order confirmation, or by delivery of the goods to the orderer.
3. Prices and payment
(1) Unless agreed otherwise, our prices shall be net (in euro) “ex works” without packaging and shipment, plus VAT at the statutory rate on the date of invoicing.
(2) If a period of more than four months elapses between contract conclusion and delivery, without us being responsible for any delay in delivery, we shall be entitled to pass the price on to the orderer, taking into account any increases in material, wage and other incidental costs, for which we are responsible, by means of a percentage price supplement that takes these increases into account accordingly. If the purchase price increases by more than 40%, the orderer shall be entitled to withdraw from the contract.
(3) The purchase price shall be payable within ten days of invoicing and delivery of the goods, subject to 2% discount, or within 30 days thereof, without any deduction, into our account with Commerzbank AG Pforzheim, IBAN DE47 6664 0035 0400 3000 00, BIC COBA DE FF XXX, or with Sparkasse Pforzheim Calw, IBAN DE44 6665 0085 0000 0026 07, BIC PZHS DE 66 XXX. However no discount shall be offered for repairs and spare parts.
(4) When the above payment term expires, the orderer shall be in
default without a formal reminder. The purchase price shall bear interest during the period of default at the statutory default interest rate, which currently stands at eight percentage points above the base rate. We shall be entitled in all circumstances to provide evidence of further default or other loss, and the orderer shall be entitled to provide evidence that no loss at all, or a significantly lower loss, has been suffered.
(5) If it becomes obvious after conclusion of the contract that our purchase price claim is in jeopardy owing to lack of capacity on the part of the orderer (e.g. because insolvency proceedings have been instituted), we shall be entitled by law to refuse to perform and, if necessary after setting a time limit, to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unwarrantable items (custom-made items), we may withdraw without notice; the statutory rules in relation to the opportunity of dispensing with the service of notice shall apply unchanged.
4. Set-off, right of retention
The orderer shall have right of setoff or retention only in relation to legally finally approved or undisputed counterclaims.
5. Delivery and transfer of risk
(1) Delivery shall be ex works at our business address, irrespective of the place of performance. If the goods should be dispatched at the orderer’s request, then it shall bear the shipping costs, and we reserve the right to select the shipping route and the type of shipping, unless agreed otherwise in writing.
(2) In the event of shipment of the goods, the risk of accidental loss or accidental deterioration shall pass to the orderer at the time of delivery to the carrier; this shall apply even if we do not deliver to the carrier ourselves (direct shipment by our suppliers) or if we use our own staff for transportation.
(3) Delivery periods shall individually be agreed or shall stated by us in our acceptance of the order. If a fixed delivery date has been agreed, this shall commence upon acceptance of the order. Adherence to the delivery time shall presuppose that the orderer has fulfilled its duties to cooperate in a timely and proper manner. If it fails to do so, the delivery time shall be extended accordingly.
(4) The delivery period shall be subject to a reasonable extension in the event of an unpredictable event outside our control (such as an act of God, labour dispute or transport problems). Even failure by one of our suppliers to deliver to us on time shall constitute such an event, if we concluded a delivery agreement under which it would have been possible to deliver to the orderer had things proceeded smoothly (congruent covering transaction), and we are not responsible for our supplier’s failure to deliver. We shall immediately notify the orderer in such circumstances. If such events make delivery extremely difficult or impossible, and the delay is more than temporary, we may entirely or partially withdraw from the contract. In that case we shall immediately reimburse considerations already paid by the orderer. This shall not affect the other statutory rights of withdrawal from, or termination of the contract.
(5) If a binding delivery date is overrun by more than four weeks, for reasons for which we are responsible, the orderer must set us a reasonable additional period. If we fail to deliver within this additional period, the orderer may withdraw from the contract. Notice of withdrawal must be declared in writing and immediately upon expiry of the additional period allowed, albeit at the latest within two weeks of its expiry.
(6) The occurrence of delivery default shall be determined on the basis of the statutory rules. The orderer must at all events send a formal reminder. If we default in delivery, the orderer (provided it can produce credible evidence that it has suffered loss as a result) may demand a flat rate amount of compensation for the default loss it has suffered. The flat rate loss amount shall be 0.5% of the net price (value of the delivery) for each full calendar week of default, albeit at most 5% of the value of delivery of the goods delivered late. The orderer may only make a claim based on evidence of a higher loss if we are liable as a result of an intentional or grossly negligent act or owing to loss of life, personal injury or impairment to health. We shall be entitled to provide proof that the purchaser has not suffered a loss, or has suffered a significantly lower loss than the above flat rate.
(7) If the orderer defaults in acceptance, fails to undertake an act of cooperation, or if our delivery is delayed for other reasons for which the orderer is responsible, we shall be entitled to withdraw from the contract after setting an additional period and/or to claim compensation including additional expenses (such as storage costs, further deliveries). We charge for this flat rate compensation of 0.5% of the net price (value of the delivery) per full calendar week, albeit at most 5% of the value of
the delivery. This shall affect neither the right to provide proof of a higher loss nor our statutory claims; however, the flat rate amount must be credited against any further claims. The orderer shall be permitted to provide proof that we have suffered no loss, or a significantly lower loss than the above flat rate.
(8) Part-deliveries shall be admissible provided the orderer can reasonably be expected to accept them.
6. Reservation of title
(1) Our deliveries shall, without exception, take place subject to reservation of title. We shall retain title to the goods sold until payment in full of our current and future receivables (including incidental receivables, compensation claims and the right to cash cheques and bills of exchange) arising out of the sale and purchase agreement and any ongoing business relationship (secured claim).
(2) The orderer shall be obliged to store the reserved goods for us with care and to maintain them at its own expense. The orderer may only combine or mix the reserved goods with other items, process and sell them, during the normal course of its business. In particular, it may not pledge reserved goods or transfer ownership thereto by way of security. The orderer must notify us immediately of attachments and other access to reserved goods, and if applicable send us a copy of the attachment report.
(3) In the event that the orderer commits a breach of contract, in particular if it fails to pay the purchase price when due, we shall be entitled to withdraw from the contract on the basis of the statutory rules and to demand the return of the goods on the basis of our reservation of title and withdrawal. If the orderer fails to pay the due purchase price, we may only assert these rights provided we have previously set the orderer a reasonable payment deadline, or if the statutory rules state that such a payment deadline is unnecessary. If we withdraw from the contract, we may demand a reasonable remuneration for transfer of use of the goods.
(4) Processing or remodelling of the reserved goods by the orderer shall in all cases be undertaken on our behalf, without us incurring any liabilities as a result. If reserved goods are inseparably incorporated with or added to other items, or combined with another item (main item) in such a way that they become its principal constituent, it is agreed that we shall acquire co-ownership of the entire quantity or of the main item, in the ratio of the invoice value of the reserved goods to the value of the other item or the main item at the time of incorporation or addition. The orderer shall store the main item for us free of charge with the habitual due care of a prudent businessman. If reserved goods of other suppliers are processed at the same time, sentences 1 and 2 shall apply accordingly.
(5) The orderer hereby assigns to us in advance all claims arising out of a resale of the reserved goods, along with all ancillary and security rights including bills of exchange and cheques, plus a flat rate surcharge of 15% for interest and costs, in order to secure all claims against the orderer arising out of the business relationship. We hereby accept such assignment. If the reserved goods are sold together with other goods at an aggregate price, the assignment shall be restricted to the prorata amount of our invoice for the reserved goods sold at the same time. If goods are sold to which we have a co-ownership share on the basis of the above rule, the assignment shall be restricted to that part of the claim that corresponds to our co-ownership share. The orderer may not agree a prohibition of assignment with its contracting partner and in turn only deliver subject to reservation of title; it must upon request give us the name of its contracting partner and provide us with or deliver to us the information and documents that are necessary for us to assert our rights. The orderer is entitled to collect the assigned receivable, notwithstanding our authority to collect the receivable ourselves; we shall only collect the receivable ourselves if the orderer has fallen into payment arrears or has suffered a financial collapse (has applied for the institution of solvency proceedings, has suspended payments etc.).
(6) If the realisable value of the collateral should be more than 10% higher than that of our receivables, we shall release collateral, at our choice, at the purchaser’s request.
(1) Unless specified otherwise below, the statutory rules shall apply to the rights of the orderer in the event of material and legal defects (including incorrect and short delivery and also incorrect installation or deficient installation instructions). The special statutory rules in relation to final delivery of the goods to the consumer shall still apply in all cases (supplier recourse under §§ 478, 479 BGB).
(2) The orderer may only make a claim in relation to defects provided it has complied with its statutory duties to investigate and make a complaint (§ 377 HGB [German Commercial Code]). If a defect should become apparent later during investigation, we must be notified thereof immediately. Notification shall be deemed to be immediate provided it takes place within five working days of discovery of the defect. Our receipt of the defect notification shall be authoritative in determining its timeliness. The notification must be delivered in writing. Irrespective of its duties to investigate and make a complaint described above, the orderer must notify evident defects (including incorrect and short delivery) within three working days following delivery; our receipt of the defect notification shall be authoritative in determining its timeliness. The notification must be delivered in writing. If the orderer fails to submit the above defect notifications, we accept no liability for the defect that has not been notified.
(3) We shall provide subsequent performance in the event of a timely and well-founded defect notification: We may elect either to take back the defective goods and deliver defect-free goods (replacement delivery) or else to make good the defect (remedy). In the event that the subsequent performance fails, the orderer may elect either to reduce
the purchase price or to withdraw from the contract. Subject to the rules laid down in Section 8 below, the orderer shall not be entitled to make any further claims, irrespective of their legal basis.
(4) In the case of a defect that only reduces the value or serviceability of the goods to an insignificant degree, the orderer may neither claim subsequent performance nor reduce the purchase price.
(5) The period of limitation for all claims based on defects, including claims to damages, shall be one year from delivery. This time limit shall not apply if the law prescribes longer time limits, pursuant to §§ 438(1) No. 2 (constructions and construction materials), 479(1) (recourse claim) and 634a(1) No. 2 (construction defects) BGB, in the event of intent, fraudulent concealment of the defect and failure to honour a quality guarantee. This shall not affect the statutory provisions relating to suspension of the statute of limitations, suspension and restart of the time limits.
8. Damages and reimbursement of expenditure
(1) We shall be liable for intent and gross negligence. We shall also be liable for simple negligence, in the event of
- losses caused through the breach of those contractual obligations which themselves enable proper completion of the contract, and on the fulfilment of which the orderer customarily relies and is entitled to rely; in that case, however, our liability shall be restricted to the indemnification of the predictable, typically occurring loss.
- losses caused by loss of life, physical injury and health impairment. Excluded from above limitation of liability shall be cases of liability under the Produkthaftungsgesetz [German Product Liability Act] and also if we have fraudulently failed to declare a defect or have accepted a guarantee in relation to the quality.
(2) If we cannot be held liable or if our liability is restricted, the same shall apply in relation to the personal liability of our salaried employees, workers, representatives and vicarious agents.
9. Information on dispute resolution proceedings as per Article 36 VSBG [German Act on Alternative Dispute Resolution in Consumer Matters]
We are not prepared to participate in dispute resolution proceedings before a consumer arbitration body and we are not obliged to collaborate in such dispute resolution proceedings before a consumer arbitration body. In case of any questions or problems please contact us directly: email@example.com. European online dispute resolution website:
We reserve title and copyright to illustrations, drawings, calculations and other documents. The orderer must obtain our explicit written approval before passing these on to third parties. If the contract is terminated and in the event that the contractual negotiations should fail, the orderer must immediately return to us the documents it has been given.
11. Place of jurisdiction, governing law
(1) If the orderer is a trader, public sector legal entity or public law special trust (§ 310(1) BGB), the place of jurisdiction for disputes arising out of the contractual relationship shall be our registered office (Neubulach). However, we may also bring an action against the orderer at the courts at its own general place of jurisdiction.
(2) Contracts shall be governed by the law of the Federal Republic of Germany.