§ 1 General Provisions; Scope of Application
(1) Our terms and conditions of sale and delivery shall apply exclusively; we do not recognize any terms and conditions of the Customer that conflict with or deviate from our terms of sale, unless we have expressly agreed to their applicability in writing. Our terms of sale shall apply even if we execute delivery to the Customer without reservation while being aware of conflicting terms or terms deviating from our terms of sale on the part of the Customer.
(2) All agreements made between us and the Customer for the purpose of executing this contract are set forth in writing in this contract.
(3) Agreements made between the contracting parties in individual cases (including collateral agreements, supplements, and amendments) shall, in all cases, take precedence over these General Terms and Conditions.
(4) Our terms of sale shall apply only to entrepreneurs within the meaning of Section 310, Paragraph 1 of the German Civil Code (BGB).
§ 2 Offer and Conclusion of Contract
(1) If an order is to be classified as an offer pursuant to Section 145 of the German Civil Code (BGB), we may accept it within two weeks by sending an order confirmation or by delivering the ordered products.
(2) We reserve all proprietary rights and copyrights to illustrations, drawings, calculations, and other documents. This also applies to written documents designated as “confidential.” The customer requires our express written consent before disclosing such documents to third parties.
(3) Our offers are subject to change and non-binding, unless we have expressly designated them as binding.
§ 3 Quantities and Weights
(1) The addition of “circa,” “approx.,” or “about” preceding a quantity specification entitles us to deviate from the stated quantity by up to 10% (either upward or downward) upon delivery.
(2) Weights shall be determined in accordance with customary trade practices prior to the dispatch of the goods. The dispatch weight determined in this manner shall be deemed authoritative in all instances, particularly for the purpose of invoicing. Any ordinary loss of weight occurring after the dispatch of the goods during transit shall be borne by the buyer.
§ 4 Prices, Payment Terms
(1) Unless otherwise stated in the order confirmation, our prices apply ex loading point, including packaging. Statutory value-added tax is not included in our prices; it shall be shown separately on the invoice at the statutory rate applicable on the day of invoicing.
(2) Any deduction of a cash discount requires a specific written agreement. Unless otherwise stated in the order confirmation, the purchase price is due immediately upon receipt of our invoice by the Buyer and is payable without deduction.
(3) The Customer is entitled to rights of set-off only if their counterclaims have been legally established, are undisputed, or have been acknowledged by us. Furthermore, the Customer is authorized to exercise a right of retention only insofar as their counterclaim is based on the same contractual relationship.
(4) Should the Buyer fall into arrears with payment, or should a material deterioration in their financial situation occur, we shall be entitled—irrespective of any agreed payment terms—to demand immediate payment for goods already delivered under this and all other contracts with the same Buyer; furthermore, with regard to goods not yet delivered, we shall be entitled to demand advance payment or the provision of security, and to refuse further performance of the contract until such immediate payment, advance payment, or security has been provided. Should the Buyer fail to comply with a demand for advance payment or the provision of security within a period of 7 calendar days, we shall be entitled—at our discretion—to withdraw from the contract and/or to claim damages for non-performance of the contract. The same shall apply if circumstances existed prior to or at the time of contract conclusion that cast doubt upon the Buyer’s creditworthiness, but which only became known to us after the contract had been concluded.
(5) The Buyer may make payments to our employees with debt-discharging effect only if said employees are able to present a written power of attorney for collection.
(6) Taxes, expenses, and other levies or costs arising after the conclusion of the contract as a result of legislative changes or administrative measures shall always be borne by the Buyer, as shall any other adverse effects resulting from changes to import and customs regulations.
§ 5 Deliveries and Time Limits
(1) The commencement of the delivery period specified by us is conditional upon the clarification of all contractually relevant issues. Delivery dates or time limits that have not been expressly agreed upon as binding constitute merely non-binding estimates. If no delivery period has been agreed upon, delivery shall take place “as soon as possible.” Any agreement regarding delivery periods is subject, on the part of the Seller, to the express proviso of timely self-delivery and the unimpeded possibility of shipment.
(2) Compliance with our delivery obligation is further conditional upon the timely and proper fulfillment of the Customer’s obligations. We reserve the right to invoke the defense of non-performance of the contract.
(3) Should the Customer default on acceptance or culpably breach other duties of cooperation, we shall be entitled to demand compensation for any damages incurred by us in this regard, including any additional expenses. We reserve the right to assert further claims.
(4) Provided that the conditions set forth in Paragraph (3) are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the Customer at the moment said Customer enters into default on acceptance or default on payment.
(5) We shall be liable in accordance with statutory provisions insofar as the underlying purchase contract constitutes a fixed-date transaction within the meaning of Section 286 Para. 2 No. 4 of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB). We shall also be liable in accordance with statutory provisions insofar as, as a consequence of a delay in delivery for which we are responsible, the Customer is entitled to assert that their interest in the continued performance of the contract has ceased to exist.
(6) Furthermore, we shall be liable in accordance with statutory provisions insofar as the delay in delivery is based on an intentional or grossly negligent breach of contract for which we are responsible; any fault on the part of our representatives or vicarious agents shall be imputed to us. Unless the delay in delivery is based on an intentional breach of contract for which we are responsible, our liability for damages is limited to foreseeable, typically occurring damage.
(7) We shall be liable in accordance with statutory provisions insofar as any delay in delivery for which we are responsible is based on a case of slight negligence involving a breach of material obligations (obligations the breach of which jeopardizes the attainment of the contractual purpose) or a breach of cardinal obligations (obligations the fulfillment of which is a prerequisite for the proper execution of the contract and upon the observance of which the customer regularly relies); however, in each such case, our liability shall be limited to foreseeable damages typical for the type of contract in question. We shall not be liable for the slightly negligent breach of obligations other than those specified above.
(8) We are entitled to make partial deliveries and render partial performance at any time, provided that this is reasonable for the Buyer. Should the Buyer default on acceptance, we shall be entitled to demand compensation for any resulting damages and for any additional expenses incurred. The same shall apply if the Buyer culpably breaches any duties of cooperation. Upon the occurrence of default on acceptance or default by the debtor, the risk of accidental deterioration and accidental loss shall pass to the Buyer.
§ 6 Passing of Risk; Shipping Costs
(1) Unless otherwise stipulated in the order confirmation, delivery is agreed to be “free domicile” (carriage paid). Separate agreements shall apply regarding the return of packaging materials.
(2) We shall endeavor to take into account the Buyer’s wishes and interests regarding the method and route of shipment; however, any additional costs resulting therefrom—even in cases where carriage-paid delivery has been agreed upon—shall be borne by the Buyer.
(3) If shipment is delayed at the Buyer’s request or due to the Buyer’s fault, we shall store the goods at the Buyer’s expense and risk. In such a case, notification that the goods are ready for shipment shall be deemed equivalent to actual shipment.
§ 7 Warranty and Liability
(1) Claims for defects by the Customer are conditional upon the Customer having duly fulfilled their obligations to inspect and give notice of defects pursuant to § 377 of the German Commercial Code (HGB).
(2) Insofar as a defect exists in the purchased item, the Customer is entitled, at their discretion, to subsequent performance in the form of rectification of the defect or the delivery of a new, defect-free item. In the event of rectification of the defect, we are obliged to bear all expenses necessary for the purpose of rectification—in particular transport, travel, labor, and material costs—provided that these are not increased by the fact that the purchased item was transported to a location other than the place of performance.
(3) If subsequent performance fails, the Customer is entitled, at their discretion, to demand rescission of the contract or a reduction in the purchase price.
(4) We shall be liable in accordance with statutory provisions insofar as the Customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not charged with intentional breach of contract, liability for damages shall be limited to the foreseeable, typically occurring damage.
(5) We shall be liable in accordance with statutory provisions insofar as we culpably breach a material contractual obligation (obligations the breach of which endangers the achievement of the contractual purpose) or a cardinal obligation (obligations the fulfillment of which is essential for the proper execution of the contract and upon the observance of which the Customer regularly relies); however, in each case, liability shall be limited to the foreseeable, contract-typical damage. We shall not be liable for the slightly negligent breach of obligations other than those specified above.
(6) Insofar as the Customer is entitled to a claim for damages in lieu of performance, our liability—even within the scope of Paragraph (3)—shall be limited to compensation for foreseeable, typically occurring damages.
(7) Liability for culpable injury to life, body, or health remains unaffected; this also applies to mandatory liability under the Product Liability Act. Unless expressly stipulated otherwise above, liability is excluded.
(8) We must be afforded the opportunity to verify the timeliness and validity of any notice of defects. In the event of apparent defects in the goods or objections regarding weight, the specific grounds for the notice or objection must be stated precisely. Furthermore, in the case of a notice regarding latent defects, an official veterinary certificate must be submitted simultaneously. Notices of defects must be submitted exclusively to us; i.e., an objection raised with representatives or agents shall not suffice.
(9) Any claim regarding defects or objections regarding weight shall be precluded if the Buyer has inextricably commingled the delivered goods with other goods or has commenced processing the delivered goods. Goods regarding which a notice of defects was not submitted in a timely or proper manner shall be deemed approved.
(10) If we provide an official health certificate regarding the delivered goods, the content of said certificate shall constitute irrefutable proof of the condition and quality of the goods at the time to which the certificate refers.
(11) The limitation period for claims arising from defects shall be 12 months, calculated from the passing of risk. The limitation period in the event of a supplier’s recourse claim pursuant to Sections 478 and 479 of the German Civil Code (BGB) remains unaffected; it shall be five years, calculated from the delivery of the defective item. The buyer’s claims for damages arising from a defect shall become time-barred one year after delivery of the goods. This shall not apply in the event of injury to life, body, or health caused by us, our legal representatives, or our vicarious agents, or if we or our legal representatives have acted with intent or gross negligence, or if our ordinary vicarious agents have acted with intent.
§ 8 Retention of Title
(1) We retain title to the purchased item until receipt of all payments arising from the delivery contract. In the event of conduct by the Customer contrary to the contract—in particular, default in payment—we are entitled to take back the purchased item. Our taking back of the purchased item constitutes a withdrawal from the contract. Following the taking back of the purchased item, we are authorized to realize it; the proceeds from such realization—less reasonable costs of realization—shall be credited against the Customer’s liabilities.
(2) The Customer is obliged to handle the purchased item with care; in particular, the Customer is obliged to adequately insure it at its own expense against damage caused by fire, water, and theft, based on its replacement value. Should maintenance and inspection work be required, the Customer must carry this out in a timely manner and at its own expense.
(3) In the event of seizure or other interventions by third parties, the Customer must notify us immediately in writing so that we may file an action pursuant to § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is unable to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the Customer shall be liable for the resulting loss incurred by us.
(4) The Customer is entitled to resell the purchased item in the ordinary course of business; however, the Customer hereby assigns to us—effective immediately—all claims arising from such resale against its own customers or third parties, up to the final invoice amount (including VAT) of our claim, regardless of whether the purchased item was resold without or after processing. The Customer remains authorized to collect this claim even after such assignment. Our own authority to collect the claim ourselves remains unaffected hereby. However, we undertake not to collect the claim as long as the customer fulfills their payment obligations out of the proceeds received, does not fall into arrears, and, in particular, no application for the opening of composition or insolvency proceedings has been filed, nor has there been a cessation of payments. Should this, however, be the case, we may demand that the customer disclose to us the assigned claims and the respective debtors, provide all information necessary for collection, hand over the associated documents, and notify the debtors (third parties) of the assignment.
§ 9 Return and Realization of Goods
If the Buyer fails to fulfill, or fails to fully fulfill, their obligations under this Contract, or if a material deterioration in their economic circumstances occurs—or subsequently comes to our attention—then:
(1) The Buyer is obliged, upon our request, to immediately disclose in detail what has happened to the goods—specifically regarding accession, commingling, processing, or resale—whether and, if applicable, where the goods are still located, and whether and, if applicable, in what amount any claims assigned to us in advance exist against whom; to this end, the Buyer must also make available to us all documents necessary for verification.
(2) We are entitled to take immediate possession of the goods subject to our retention of title and to realize them, whereby we are bound by the statutory provisions regarding the sale of pledged assets.
(3) We alone are entitled to collect the claims assigned to us in advance, whereby the Buyer must immediately provide us with all necessary documents.
§ 10 Final Provisions
(1) If the Customer is a merchant, our registered office shall be the place of jurisdiction; however, we are also entitled to sue the Customer at the court having jurisdiction over their place of residence.
(2) The laws of the Federal Republic of Germany shall apply; the applicability of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
(3) Unless otherwise stated in the order confirmation, our registered office shall be the place of performance.
— End of General Terms and Conditions —