Standard Terms and Conditions for Sale and Delivery
Standard Terms and Conditions for Sale and Delivery
§ 1 Scope of Application
(1) The Standard Terms and Conditions shall apply exclusively and only to business persons within the range of their business activities, legal entities under public law and special funds under public law (öffentlich-rechtliche Sondervermögen) in accordance with § 310 Section 1 German Civil Code (Bürgerliches Gesetzbuch, BGB).
(2) The sale of Goods on offer shall be made exclusively to natural and legal persons or partnerships with legal personality, who are acting at the time of completion of the transaction in their commercial or independent professional activities.
(3) Unless otherwise agreed in writing, contrary or deviating terms and conditions of the Purchaser shall not apply.
(4) The Standard Terms and Conditions for Sale and Delivery also apply to all future transactions with the Purchaser.
§ 2 Offers/Pricing
(1) Our offers are not binding.
(2) All sale prices are net prices and exclude the statutory value added tax in the amount valid at that time. The prices are quoted ex works. Any additional costs for packaging and transportation will be invoiced separately, unless these costs are not expressively included in the agreed sales price.
(3) The payment of the purchase price shall only be made into one of the accounts indicated to the Purchaser. The deduction of cash discounts is only admissible if expressively agreed in writing by the parties.
(4) Unless otherwise agreed in writing, the purchase price is due within ten (10) days after delivery. The Supplier is entitled to charge eight (8) percentage above the base interest rate p.a. on outstanding payments. The right to claim further damages shall remain unaffected.
(5) The Purchaser is only entitled to offset or withhold undisputed or finally adjudicated claims. The Purchaser is only entitled to execute the right to withhold the purchase price if his claim arises from the same Contract.
§ 3 Conclusion of the Contract
(1) The Sales Contract is concluded at the time when the Supplier accepts the order either by submission of a notice of acceptance, by delivery of the goods or by notification of delivery.
§ 4 Reservation of title
(1) The Supplier reserves the title of ownership in the goods until the full payment of all sums due from the dealings between the Supplier and the Purchaser has been effected.
(2) The Purchaser shall undertake to handle the goods carefully as long as the title of ownership is not yet passed to him. The Purchaser is committed to take out an insurance policy against theft, fire and water damages at replacement value and promptly notify the Supplier in writing if the goods are seized, confiscated or used for other purposes by a third party. Insofar as the third party is unable to reimburse the Supplier for court costs and extra judicial costs of legal action pursuant to § 771 of the German Code of Civil Procedure (ZPO), the Purchaser shall be liable for the loss incurred to the Supplier.
(3) The Purchaser is entitled to resell the Reserved Goods in the course of ordinary business activities. The Purchaser hereby assigns to the Supplier all liabilities against the buyer of such goods. If the value of all security interest, which the Supplier has against the Purchaser, exceeds the value of all secured claims by more the twenty (20) percent, the Supplier shall release the corresponding part of the security interest upon request of the Purchaser. Purchaser’s rights to resell the Reserved Goods expires in case of default or if the Purchaser applies for or opening of insolvency proceedings.
(4) Processing or altering/transformation of the Reserved Goods by the Purchaser shall always the performed for and on behalf of the Supplier.
(5) In such a case the remainder of the Purchaser to the purchased goods continues to the transformed object. If the Reserved Goods are processed or altered/transformed with other objects not owned by the Supplier, the Supplier shall acquire co-ownership of the new object at the ratio of the Reserved Goods’ value to the other processed or altered/transformed object at the time of processing or alteration/transformation. To secure the Supplier’s claims against the Purchaser, the Purchaser shall assign such claims to the Supplier which are created against a third party due to the Reserved Goods being connected with real property; the Supplier already accepts the assignment of such claims.
§ 5 Liability for Defects
(1) The warranty period shall be twelve (12) months starting from the passage of risk. However, this limitation shall not apply, in cases referred to in § 438 Sec. 2 No. 2 BGB (German Civil Code) or § 479 Sec. 1 BGB (German Civil Code) in which longer limitation periods are mandatory by law.
(2) The Purchaser’s warranty rights shall be contingent on the Purchaser having performed an inspection of goods upon delivery and defects being duly notified in accordance with § 377 of the German Commercial Code (HGB). Notification of defects shall be deemed delayed, if they were submitted after expiration of a period of one calendar week after delivery of the goods to the Purchaser. Hidden defects shall be notified within a term of two (2) working days after discovery of the defect.
(3) The Supplier shall provide subsequent performance (Nacherfüllung) for all defected goods by, at its sole discretion, either eliminating the defect (rectification of defects/Nachbesserung) or delivering goods free of defects (subsequent delivery/Nachlieferung). Only in case that subsequent performance fails in at least two (2) attempts, the Purchaser is entitled to raise further warranty claims against the Supplier.
(4) The Purchaser does not have the right to assert claims for damages regarding defects as to quality, if the delivered goods only insignificantly deviate from the agreed quality, or if the delivered goods are only insignificantly impaired in its usefulness, or if the damage incurred after the passage of risk due to incorrect or careless treatment, excessive use, use of inappropriate means of production or other technical or natural influences not assumed under the agreement. All warranty claims of the Purchaser will become void in the event that the delivered goods are altered by third parties.
(5) Claims of the Purchaser for reimbursement of expenses made for the purpose of subsequent performance (Nacherfüllung), in particular for transportation, travelling, labor and material costs, are excluded to the extent, as these expenses were increased by the fact that the Purchaser has transported the delivered goods to another place than the agreed delivery address; this does not apply in case that the transportation of the goods is in accordance with its intended use.
§ 6 Delivery and default
(1) The delivery term only starts upon timely and proper performance of all obligations of the Purchaser. The Supplier reserves the defence of lack of performance of the Contract.
(2) If the Purchaser fails to take delivery of the goods or in the event that the Purchaser does culpably violate other cooperation obligations, the Supplier is entitled to charge the Purchaser for reasonable costs incurring therefrom. Further claims are reserved. The risk of accidental loss or accidental deterioration of the goods passes to the Purchaser at the time when the Purchaser comes in default or acceptance of payment.
(3) The Supplier shall be liable for damages of the Purchaser in the full amount in case of intentionally or gross negligently caused late delivery. In all other cases all claims of the Purchaser for late delivery are limited to a maximum amount of three (3) percent of the purchase price for each completed week of delay, up to a maximum compensation of not more than fifteen (15) percent of the purchase price.
(4) If the Purchaser does not accept the delivery of the goods, the Supplier is entitled to rescind from the Contract after setting an appropriate term or to refuse another delivery of the goods or to claim damages. The Supplier is entitled to demand twenty five (25) percent of the agreed purchase price as a lump sum damage without being obliged to give proof of the occurrence of the damage. The Purchaser may prove that no damages have incurred to the Purchaser or have not incurred to this extent.
§ 7 Liability
(1) As for claims of damages the liability of the Supplier shall be limited to intend and gross negligence. This limitation does not apply for damages to life, body and health or as far as mandatory liability under the Law on Product Liability (Produkthaftungsgesetz) applies.
§ 8 Miscellaneous
(1) This Agreement and the legal relationship between the Supplier and the Purchaser is exclusively governed by German Law under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) Place of performance, exclusive jurisdiction and legal venue for all disputes resulting from or in connection with this Contract shall be the place of business of the Supplier in Cologne/Federal Republic of Germany.
(3) All amendments and additional agreements to these Standard Terms for Sale and Delivery are only effective, if they are made in writing. This mandatory written form requirement may only be altered by an express written document signed by each of the parties.
(4) Should individual provisions of these Standard Terms for Sale and Delivery be or become null and void, the validity of the remaining provisions shall remain unaffected. The parties shall replace the invalid provision with such a provision that economically most closely matches the meaning and purpose of the provision and is legally valid. Gaps in the Contract are to be filled on the basis of what the parties would have agreed on reasonable assessment of the facts and the law and under consideration of the legitimate interests of the other party, if the parties would have been aware of the need to arrive at an appropriate agreement for this legal issue.