General Terms of Sale

This is a convenience translation. The German version (Allgemeine Verkaufsbedingungen) is the legally binding one. Statute references are to German law: BGB = German Civil Code, HGB = German Commercial Code, ZPO = German Code of Civil Procedure.

1. Scope

1.1 These General Terms of Sale (GTS) apply to all of our business relationships with our customers ("Buyer"). The General Terms of Sale only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law, or a special fund under public law within the meaning of § 310(1) BGB.

1.2 Our General Terms of Sale apply exclusively. Deviating, conflicting, or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly consented to their validity. This consent requirement applies in all cases, for example even if the Buyer refers to its own terms in the order and we do not expressly object to them.

1.3 These General Terms of Sale apply to contracts for the sale and/or delivery of movable goods ("goods"), regardless of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the General Terms of Sale in the version valid at the time of the Buyer's order, or in the version last communicated to it in text form, shall also apply as a framework agreement to similar future contracts, without our having to refer to them again in each individual case.

1.4 Individual agreements made with the Buyer in individual cases (including ancillary agreements, supplements, and amendments) and information in our order confirmation take precedence over these General Terms of Sale. Subject to proof to the contrary, a written contract or our written confirmation is decisive for the content of such agreements.

1.5 Legally relevant declarations and notifications by the Buyer with regard to the contract (e.g. notices of defects, setting of deadlines, withdrawal, or reduction) must be made in writing, i.e. in written or text form (e.g. letter, email, fax). Further statutory formal requirements and additional proof (in particular in the event of doubts about the legitimacy of the person making the declaration) remain unaffected.

1.6 Insofar as reference is made to the applicability of statutory provisions, this is only of clarifying significance. Even without such clarification, the statutory provisions therefore apply, unless they are directly amended or expressly excluded in these General Terms of Sale.

2. Offer and conclusion of contract

2.1 Our offers are subject to change and non-binding. This also applies if we have provided the Buyer with catalogs, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), or other product descriptions or documents (including in electronic form). We reserve title and copyright to all documents provided to the Buyer in connection with the placing of the order. These documents may not be made accessible to third parties unless we give the Buyer our express written consent to do so.

2.2 The order of the goods by the Buyer constitutes a binding contractual offer pursuant to § 145 BGB. Unless otherwise stated in the order, we are entitled to accept this contractual offer within two weeks of its receipt by us.

2.3 The Buyer's acceptance of the contractual offer can be declared either in writing (e.g. by an order confirmation) or by delivery of the goods to the Buyer. If we, as the Seller, do not accept the Buyer's offer within the period specified in section 2.2, documents transmitted to the Buyer must be returned to us without delay.

3. Prices and payment terms

3.1 Unless otherwise agreed in writing in an individual case, our prices current at the time of conclusion of the contract apply, ex warehouse, plus statutory VAT. The costs of packaging are invoiced separately. Unless a fixed-price agreement has been made, we reserve the right to make reasonable price changes due to changes in labor, material, and distribution costs for deliveries made 3 months or later after conclusion of the contract.

3.2 In the case of a sale involving shipment, the Buyer bears the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. If we do not invoice the transport costs actually incurred in the individual case, we charge a flat transport fee (excluding transport insurance) in the amount of [ … ]. The Buyer bears any customs duties, fees, taxes, and other public charges.

3.3 Payment of the purchase price must be made exclusively to the account stated overleaf. A cash discount is only permitted with a special written agreement.

3.4 Unless otherwise agreed, the purchase price is due and payable within fourteen days of invoicing and delivery or acceptance of the goods. However, even within an ongoing business relationship, we are entitled at any time to carry out a delivery in whole or in part only against advance payment. We declare any such reservation at the latest with the order confirmation.

3.5 The Buyer is in default when the above payment period expires. During the default, the purchase price bears interest at the applicable statutory default interest rate under § 288(2) BGB of nine percentage points above the respective base interest rate. We reserve the right to assert further damages caused by default. With respect to merchants, our claim to commercial maturity interest under § 353 HGB remains unaffected.

3.6 If, after conclusion of the contract, it becomes apparent that our claim to payment of the purchase price is jeopardized by the Buyer's lack of ability to pay (e.g. by an application to open insolvency proceedings), we are entitled under the statutory provisions to refuse performance and, if applicable after setting a deadline, to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made items), we may declare withdrawal immediately. The statutory provisions on the dispensability of setting a deadline remain unaffected.

4. Rights of retention

The Buyer is only entitled to rights of set-off or retention insofar as its claim has been legally established or is undisputed and its counterclaim is based on the same contractual relationship. In the event that defects occur in the delivery, the Buyer's counter-rights remain unaffected, in particular pursuant to section 8.6 sentence 2 of these General Terms of Sale.

5. Delivery period and delay in delivery

5.1 The delivery period is agreed individually or stated by us upon acceptance of the order. If this is not the case, the delivery period is approximately [ … ] weeks from conclusion of the contract.

5.2 If we are unable to meet contractually agreed delivery periods for reasons for which we are not responsible, we shall inform the Buyer of this without delay and at the same time notify it of the expected or new delivery period. If a delayed delivery cannot be made due to the unavailability of the service even within the newly announced delivery period, we are entitled to withdraw from the contract in whole or in part; we shall reimburse any consideration already provided by the Buyer (in the form of payment of the purchase price) without delay. Unavailability of the service is deemed to exist, for example, if our supplier fails to deliver to us on time, if we have concluded a congruent hedging transaction, if there are other disruptions in the supply chain (for example due to force majeure), or if we are not obliged to procure in the individual case.

5.3 Whether we, as the Seller, are in delay of delivery is determined by the statutory provisions. However, a reminder from the Buyer is required for us, as the Seller, to be in delay of delivery. In the event of a delay in delivery, the Buyer can claim flat-rate compensation for its loss caused by the delay. The flat-rate compensation is 0.5% of the net price (delivery value) for each completed calendar week of delay, but no more than 5% of the delivery value of the goods delivered late in total. We reserve the right to prove that the Buyer has suffered no loss or only a lower loss than the above flat rate.

5.4 The Buyer's rights under section 9 of these General Terms of Sale and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.

6. Delivery, transfer of risk, acceptance, default of acceptance

6.1 Delivery is made ex warehouse. The warehouse is also the place of performance for the delivery and the place for any subsequent performance. If the Buyer wishes the goods to be shipped to another destination (sale involving shipment), it bears the costs of shipment. If nothing has been agreed contractually, we may determine the type of shipment ourselves (packaging, shipping route, transport company).

6.2 The risk of accidental loss and accidental deterioration passes to the Buyer upon handover of the goods to the Buyer. In the case of a sale involving shipment, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, passes as early as the delivery of the goods to the forwarding agent or carrier. If acceptance of the goods has been contractually agreed, this is decisive for the transfer of risk. Further statutory provisions of the law on contracts for work and services remain unaffected. If the Buyer is in default of acceptance, this is deemed equivalent to handover or acceptance of the goods.

6.3 If the Buyer is in default of acceptance, or if our delivery is delayed for other reasons for which the Buyer is responsible, we are entitled to compensation from the Buyer for the resulting loss, including additional expenses (e.g. storage costs). For this, we charge the Buyer flat-rate compensation of [ … ] EUR per calendar day (beginning with the delivery period or, if no delivery period is specified, with notification that the goods are ready for shipment). Our statutory claims (compensation for additional expenses, reasonable compensation, termination) and the proof of higher damages remain unaffected.

6.4 The proof of higher damages and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) remain unaffected; however, the flat rate is to be offset against further monetary claims. The Buyer reserves the right to prove that we suffered no loss at all or only a significantly lower loss than the above flat rate.

7. Retention of title

7.1 We retain title to the delivered goods until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).

7.2 Until the secured claims have been paid in full, the goods subject to retention of title may neither be pledged to third parties nor transferred as security. The Buyer must notify us in writing without delay if an application is made to open insolvency proceedings, or insofar as third parties access the goods belonging to us (e.g. seizures). Insofar as the third party is unable to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the Buyer is liable for the loss incurred by us.

7.3 In the event of conduct by the Buyer in breach of contract, in particular non-payment of the purchase price due, we are entitled, in accordance with the statutory provisions, to withdraw from the contract and/or to demand the return of the goods on the basis of the retention of title. The demand for return does not at the same time contain a declaration of withdrawal; rather, we are entitled to merely demand the return of the goods and to reserve the right of withdrawal. If the Buyer does not pay the purchase price due, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment without success, unless such a deadline is dispensable under the statutory provisions.

7.4 Until revocation pursuant to section 7.4.c, the Buyer is entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions apply in addition:

a) Products created by combining, mixing, or processing our goods are subject to retention of title at their full value, whereby we are deemed to be the manufacturer. If, in the case of combining, mixing, or processing with the goods of third parties, their title remains, we acquire co-ownership in proportion to the invoice values of the combined, mixed, or processed goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title. The Buyer also assigns to us, for security purposes, any claims against third parties that accrue to it through the combination of the reserved goods with real property. We accept this assignment.

b) The Buyer already now assigns to us, for security purposes, in full or in the amount of any co-ownership share of ours pursuant to section 7.4.a, the claims against third parties arising from the resale of the goods or the product, in the amount of the final invoice amount agreed with us (including VAT). We accept the assignment. The Buyer's obligations set out in section 7.2 also apply with regard to the assigned claims.

c) The Buyer remains authorized, alongside us, to collect the claim. As long as the Buyer meets its payment obligations to us, there is no deficiency in the Buyer's ability to pay, and we do not assert the retention of title by exercising a right pursuant to section 7.3, we undertake not to collect the claim. If we assert a right pursuant to section 7.3, we may demand that the Buyer disclose the assigned claims and their debtors, provide all information necessary for collection, hand over the associated documents, and notify the debtors (third parties) of the assignment. In addition, we are entitled to revoke the Buyer's authority to resell and to process the goods subject to retention of title.

d) If the realizable value of the collateral exceeds our claims by more than 10%, we shall release collateral of our choice at the Buyer's request.

7.5 As long as title has not yet passed to it, the Buyer is obliged to treat the purchased item with care. In particular, it is obliged to insure it adequately at its own expense against theft, fire, and water damage at replacement value (note: only permissible when selling high-value goods). If maintenance and inspection work is required, the Buyer must carry this out in good time at its own expense.

8. Buyer's claims for defects

8.1 The statutory provisions apply to the Buyer's rights in the event of material and legal defects (including incorrect and short delivery as well as improper assembly/installation or defective instructions), unless otherwise stipulated below. The statutory provisions on the sale of consumer goods (§§ 474 ff. BGB) and the Buyer's rights arising from separately issued guarantees, in particular by the manufacturer, remain unaffected.

8.2 Agreements we have made with Buyers regarding the quality and intended use of the goods (including accessories and instructions) regularly form the basis of our liability for defects within the scope of the warranty. An agreement on quality includes all product descriptions and manufacturer information that are the subject of the individual contract or were publicly announced by us (in particular in catalogs or on our website) at the time of conclusion of the contract. If no quality was agreed, whether a defect exists is to be assessed in accordance with § 434(3) BGB. Against this background, it should be noted that public statements by the manufacturer in advertising or on the label of the goods take precedence over statements by other third parties.

8.3 For goods with digital elements or other digital content, it should be noted that we are only obliged to provide and update the digital content insofar as this expressly results from an agreement on quality pursuant to section 8.2. We accept no liability for public statements by the manufacturer and other third parties.

8.4 We are not liable for defects of which the Buyer is aware at the conclusion of the contract or of which it is unaware due to gross negligence (§ 442 BGB).

8.5 The Buyer's claims for defects only exist insofar as the Buyer has complied with its statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). If the goods are building materials or other goods intended for installation or further processing, an inspection must be carried out immediately before processing. Written notice must be given to us without delay if a defect becomes apparent during delivery, inspection, or at a later time. Obvious defects must be reported in writing within [ … ] working days of delivery, and defects that are not detectable within the same period from the discovery of the defect. If the Buyer fails to properly inspect and/or give notice of defects, our liability for the defect not reported, not reported in time, or not properly reported is excluded in accordance with the statutory provisions. If the goods were intended for installation, attachment, or fitting, this also applies if the defect only became apparent after the corresponding processing as a result of the non-compliance with or breach of one of these obligations. In this case, the Buyer is not entitled to claims for reimbursement of "removal and installation costs".

8.6 If the delivered goods are defective, we, as the Seller, have the right to choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). If the type of subsequent performance chosen by us is unreasonable for the Buyer in the individual case, it may refuse it. However, we reserve the right to refuse subsequent performance under the statutory conditions. In addition, we are entitled to make the subsequent performance we are to provide dependent on the Buyer paying the purchase price due. However, the Buyer is entitled to retain a portion of the purchase price that is reasonable in relation to the defect.

8.7 The Buyer must give us the necessary time and opportunity for the subsequent performance to be provided. In particular, the Buyer must hand over to us for inspection purposes the item for which it has asserted a defect. If we carry out a replacement delivery of a defect-free item, the Buyer must return the defective item to us in accordance with the statutory provisions. However, the Buyer is not entitled to a claim for return.

8.8 Unless we have contractually undertaken to do so, the subsequent performance includes neither the removal, extraction, or de-installation of the defective item nor the installation, attachment, or fitting of a defect-free item. The Buyer's claims for reimbursement of "removal and installation costs" remain unaffected.

8.9 We reimburse the expenses necessary for inspection and subsequent performance (transport, labor, and material costs and, if applicable, removal and installation costs) in accordance with the statutory provisions and these General Terms of Sale in the event that a defect exists. However, we may demand reimbursement from the Buyer of the costs incurred as a result of an unjustified request to remedy a defect if the Buyer knew or could have recognized that no defect actually existed.

8.10 The Buyer has the right to remedy the defect itself and to demand reimbursement of the objectively necessary expenses for this if there is an urgent case (e.g. in the event of a risk to operational safety or to avert disproportionate damage). In the event of self-remedy, the Buyer must inform us without delay. If we would be entitled to refuse subsequent performance under the statutory provisions, the Buyer has no right to self-remedy.

8.11 The Buyer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions if a deadline to be set by the Buyer for subsequent performance has expired without success or is dispensable under the statutory provisions. However, the Buyer has no right of withdrawal in the case of an insignificant defect.

8.12 The Buyer's claims for reimbursement of expenses pursuant to § 445a(1) BGB are excluded, unless the last contract in the supply chain is a sale of consumer goods (§§ 478, 474 BGB) or a consumer contract for the provision of digital products (§§ 445c sentence 2, 327(5), 327u BGB).

8.13 Claims for damages or claims for reimbursement of futile expenses by the Buyer (§ 284 BGB) exist, even in the event of a defect, only in accordance with section 9 and section 10.

9. Limitation period

9.1 Notwithstanding § 438(1) no. 3 BGB, the general limitation period for claims arising from material or legal defects is one year from delivery. If acceptance has been contractually agreed, the limitation period begins with acceptance.

9.2 In accordance with the statutory provisions, the limitation period is 5 years from delivery (§ 438(1) no. 2 BGB) if the goods are a building or an item that has been used for a building in accordance with its customary use and has caused its defectiveness (building material). This applies subject to further statutory special provisions on the limitation period (in particular § 438(1) no. 1, (3), §§ 444, 445b BGB).

9.3 The above limitation periods of sales law also apply to the Buyer's contractual and non-contractual claims for damages based on a defect in the goods, unless the application of the standard statutory limitation period pursuant to §§ 195, 199 BGB would lead to a shorter limitation period in the individual case. The Buyer's claims for damages pursuant to sections 10.1 and 10.2.a) and those under the Product Liability Act become time-barred exclusively in accordance with the statutory limitation periods.

10. Other liability

10.1 Unless otherwise stated in these General Terms of Sale, including the following provisions, we, as the Seller, are liable for breaches of contractual and non-contractual obligations in accordance with the statutory provisions.

10.2 Within the scope of fault-based liability, we are liable for damages, irrespective of the legal grounds, only in the case of intent and gross negligence. In the case of simple negligence, we are liable, subject to statutory limitations of liability (e.g. care in our own affairs; insignificant breach of duty), only:

a) for damages resulting from injury to life, body, or health,

b) for damages resulting from the breach of a material contractual obligation (obligations whose fulfillment is essential to the proper performance of the contract and on whose compliance the contractual partner regularly relies and may rely). In this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.

10.3 The limitations of liability arising from section 10.2 also apply to third parties and to breaches of duty by persons for whose fault we are responsible under the statutory provisions. Insofar as a defect has been fraudulently concealed and a guarantee for the quality of the goods has been assumed, the limitations of liability do not apply. This also applies to the Buyer's claims under the Product Liability Act.

10.4 The Buyer may withdraw or terminate on account of a breach of duty that does not result from a defect only if we, as the Seller, are responsible for the breach of duty.

10.5 A right of termination on the part of the Buyer (in particular pursuant to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences apply.

11. Choice of law and place of jurisdiction

11.1 These General Terms of Sale and the contractual relationship between us, as the Seller, and the Buyer are governed by the law of the Federal Republic of Germany, to the exclusion of uniform international law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).

11.2 If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special fund under public law, our place of business in [ … ] is the exclusive and also international place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the Buyer is an entrepreneur within the meaning of § 14 BGB.

11.3 We are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms of Sale or a prevailing individual agreement, or at the Buyer's general place of jurisdiction. Prevailing statutory provisions (exclusive places of jurisdiction) remain unaffected.

← Back to home