1 Validity
(1) All deliveries, services and offers from the seller are made exclusively on the basis of these general delivery conditions. These are part of all contracts that the seller concludes with his contractual partners (hereinafter also referred to as “client”) regarding the deliveries or services offered by him. They also apply to all future deliveries, services or offers to the client, even if they are not agreed separately again.
(2) The terms and conditions of the client or third parties do not apply, even if the seller does not separately object to their validity in individual cases. Even if the seller refers to a letter that contains the terms and conditions of the client or a third party or refers to such terms and conditions, this does not constitute agreement with the validity of those terms and conditions.
2 Offer and conclusion of contract
(1) All offers from the seller are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The seller can accept orders or orders within four hours of receipt.
(2) Information provided by the seller about the object of the delivery or service (e.g. weights, dimensions, use values, load capacity, tolerances and technical data) and our representations of the same (e.g. drawings and illustrations) are only approximate, unless usability for the contractually intended purpose requires precise agreement. They are not guaranteed characteristics, but descriptions or markings of the delivery or service. Customary commercial deviations and deviations based on legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permitted, provided that they do not impair usability for the contractually agreed purpose.
(3) The seller reserves ownership or copyright to all offers and cost estimates made by him and drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the client. Without the express consent of the seller, the client may not make these objects available to third parties, disclose them, use or reproduce them himself or through third parties. At the seller's request, he must return these items in full to the seller and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not result in the conclusion of a contract.
3 Prices and Payment
(1) The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services are charged separately. The prices are in the specified currency plus packaging, statutory value added tax, unless the services are carried out using the reverse charge procedure. In the case of export deliveries, plus any customs duties in the recipient country, import sales tax in the recipient country as well as fees and other public charges.
(2) Insofar as the agreed prices are based on the seller's list prices and delivery is only to take place more than four months after the conclusion of the contract, the seller's list prices valid at the time of delivery apply (in each case minus an agreed percentage or fixed discount)
(3) Unless otherwise agreed in writing, the seller only delivers against payment in advance or as an “on-hold” settlement. After three deliveries and payments have been made, you can switch to the “invoice” payment method without a further written agreement
(4) If delivery on account has been agreed, invoice amounts must be paid within 24 hours of receipt of the goods, without any deduction, unless an individual payment term has been agreed with the buyer, but not more than 7 days. The date of payment is the date of receipt by the seller. Cheques are not accepted. Payments are considered made when the amount is finally credited to the seller's account or a cash payment has been made. If the client does not pay when due, interest is payable on the outstanding amounts at 5% p.a. from the due date; the assertion of higher interest and further damages in the event of default remains unaffected.
(5) The offsetting against counterclaims by the client or the withholding of payments due to such claims is only permitted if the counterclaims are undisputed or have been legally established.
(6) The seller is entitled to carry out or provide outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, he becomes aware of circumstances which are likely to significantly reduce the creditworthiness of the client and which jeopardize the payment of the seller's outstanding claims by the client arising from the respective contractual relationship (including from other individual orders for which the same framework agreement applies).
(7) In the case of “onhold” transactions with 10/90 payment, the seller may withdraw from the contract if the buyer defaults on the remaining payment longer than 24 hours from the availability date/time. The availability date/time is assumed to be the time when the seller or a third party commissioned by him notifies the buyer that the delivery has been allocated to the buyer. In the event of default, the seller can withdraw from the contract and claim the actual amount of damage, but at least 10% of the total amount, using deposits already made by the buyer.
(8) If the buyer refuses to accept, despite provision of the contractually agreed service, the seller may withdraw from the sale 2 hours after provision of the service and claim the actual amount of damage, but at least 15% of the total amount, and use down payments already made by the buyer.
(9) The seller has the right to assign his claims against the client to third parties.
(10) If the client is in default of payment with a claim, all other claims against the client may be made due.
(11) Client must bear all fees, costs and expenses incurred in connection with any successful legal action against him outside Germany.
4 Delivery and delivery time
(1) Deliveries are generally made from the seller's warehouse. The warehouse can also be operated by a third party.
(2) Deadlines and dates promised by the seller for deliveries and services are only approximate, unless a fixed period or date has been expressly promised or agreed upon. If shipment has been agreed, delivery periods and delivery dates relate to the time of handover to the freight forwarder, carrier or other third party responsible for the transport.
(3) Without prejudice to his rights arising from default by the client, the seller may demand from the client an extension of delivery and performance periods or a postponement of delivery and performance dates by the period in which the client fails to fulfill its contractual obligations towards the seller.
(4) The seller is not liable for the impossibility of delivery or for delays in delivery, insofar as these are due to force majeure or other events unforeseeable at the time the contract is concluded (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary regulatory permits, official measures or the lack of, incorrect or timely delivery by suppliers) have been caused for which the seller is not responsible. If such events significantly impede or make delivery or performance impossible for the seller and the hindrance is not only of temporary duration, the seller is entitled to withdraw from the contract. In the event of temporary obstacles, the delivery or performance deadlines are extended or the delivery or service dates are postponed by the period of hindrance plus a reasonable start-up period. Insofar as the client cannot be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by sending an immediate written statement to the seller.
(5) The seller is only entitled to make partial deliveries if
— the partial delivery can be used by the client within the scope of the contractual purpose,
— delivery of the remaining ordered goods is ensured, and
— the client does not incur any significant additional expenses or additional costs as a result (unless the seller agrees to assume these costs).
(6) If the seller defaults on a delivery or service or if a delivery or service becomes impossible for him, for whatever reason, the seller's liability is limited to compensation in accordance with § 8 of these General Terms of Delivery.
5 Place of fulfilment, shipping, packaging, transfer of risk, acceptance
(1) The place of performance for all obligations arising from the contractual relationship is 34128 Kassel, Germany, unless otherwise specified. If the seller is also responsible for the installation, the place of fulfilment is the place where the installation must be carried out.
(2) The shipping method and packaging are subject to the seller's due discretion.
(3) The risk is transferred to the client no later than when the delivery item is handed over (the start of the loading process being decisive) to the freight forwarder, carrier or other third party designated to carry out the shipment. This applies even if partial deliveries are made or the seller has taken on other services (e.g. shipping or installation). If shipping or handover is delayed as a result of circumstances caused by the client, the risk is transferred to the client from the day on which the delivery item is ready for dispatch and the seller has notified the client of this.
(4) Storage costs after transfer of risk are borne by the client. If stored by the seller, the storage costs amount to 0.25% of the invoice amount of the delivery items to be stored per past week. We reserve the right to assert and prove further or lower storage costs.
(5) The seller will only insure the shipment against theft, breakage, transport, fire and water damage or other insurable risks at the buyer's express request and at his expense.
(6) Insofar as acceptance has to take place, the purchased item is considered accepted when the buyer has paid the purchase price in full.
In the case of “onhold” transactions, a commissioned third party has created an IR and this is not complained about within 2 hours of receipt.
(7) In the case of deliveries to German customers who wish to be shipped outside Germany, the economic transfer takes place when the goods are handed over from the seller to the freight forwarder.
(8) Unless instructions are given by the buyer, the seller decides on the selection of the freight forwarder and the type of transport.
6 Property rights
(1) In accordance with this § 7, the seller guarantees that the delivery item is free from industrial property rights or copyrights of third parties. Each contractual partner will immediately notify the other contractual partner in writing if claims are made against him due to the infringement of such rights.
(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, the seller will, at his option and at his expense, modify or replace the delivery item in such a way that the rights of third parties are no longer infringed, but the delivery item continues to fulfill the contractually agreed functions, or grant the client the right of use by concluding a license agreement. If he is unable to do so within a reasonable period of time, the client is entitled to withdraw from the contract or to reduce the purchase price accordingly. Any compensation claims made by the client are subject to the restrictions set out in § 8 of these General Terms of Delivery.
(3) In the event of infringements of rights caused by products from other manufacturers delivered by the seller, the seller will, at its option, assert claims against the manufacturers and sub-suppliers for the account of the client or assign them to the client. In these cases, claims against the seller exist in accordance with this Section 7 only if the judicial enforcement of the above claims against the manufacturers and sub-suppliers was unsuccessful.
7 Liability for compensation due to fault
(1) The seller's liability for damages, irrespective of the legal basis, in particular due to impossibility, default, defective or incorrect delivery, breach of contract, breach of obligations in contract negotiations and tort, insofar as fault is involved in each case, limited in accordance with this § 8.
(2) The seller is not liable in the event of simple negligence on the part of its organs, legal representatives, employees or other vicarious agents, unless it is a breach of essential contractual obligations. Essential to the contract are the obligation to deliver and install the delivery item free of significant defects as well as duties of advice, protection and care, which are intended to enable the client to use the delivery item in accordance with the contract or to protect the life or limb of the client's personnel or the protection of the client's property from significant damage.
(3) Insofar as the seller is fundamentally liable for damages in accordance with § 8 (2), this liability is limited to damage which the seller foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or which he should have foreseen if he had exercised normal care. Indirect damage and subsequent damage resulting from defects in the delivery item are also only eligible for compensation insofar as such damage is typically expected when the delivery item is used as intended.
(4) The above exclusions and limitations of liability apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of the seller.
(5) Insofar as the seller provides technical information or provides advice and this information or advice is not part of the contractually agreed scope of services owed by him, this is done free of charge and to the exclusion of any liability.
(6) The restrictions of this Section 8 do not apply to the seller's liability for intentional conduct, for guaranteed characteristics, for injury to life, limb or health, or under the Product Liability Act.
8 Retention of title
(1) The retention of title agreed below serves to secure all existing current and future claims of the seller against the buyer arising from the supply relationship between the contractual partners via electronic devices (including balance claims from a current account relationship limited to this delivery relationship).
(2) The goods delivered by the seller to the buyer remain the property of the seller until all secured claims have been paid in full. The goods and the goods taking their place under this clause and covered by the retention of title are referred to as reserved goods below.
(3) The buyer stores the reserved goods free of charge for the seller.
(4) The buyer is entitled to process and sell the reserved goods in the ordinary course of business until the case of exploitation (paragraph 9) occurs. Pledges and security transfers are prohibited.
(5) If the reserved goods are processed by the buyer, it is agreed that the processing is carried out in the name and for the account of the seller as manufacturer and the seller directly acquires ownership or — if the processing is carried out from materials from several owners or the value of the processed item is higher than the value of the reserved goods — joint ownership (fractional ownership) of the newly created item in proportion of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership occurs with the seller, the buyer is already transferring his future ownership or — in the above relationship — joint ownership of the newly created item to the seller as security. If the reserved goods are combined or inseparably mixed with other items to form a single item and one of the other items is to be regarded as the main item, the seller, insofar as the main item belongs to him, transfers joint ownership of the single item to the buyer on a pro rata basis in the relationship specified in sentence 1.
(6) In the event of resale of the reserved goods, the buyer hereby assigns to the seller as security of the resulting claim against the acquirer — if the seller co-owns the reserved goods in proportion to the co-ownership share. The same applies to other claims that take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims arising from tort in the event of loss or destruction. The seller revocably authorizes the buyer to collect the claims assigned to the seller in his own name. The seller may only revoke this direct debit authorization in the event of exploitation.
(7) If third parties access the reserved goods, in particular through seizure, the buyer will immediately inform them of the seller's ownership and inform the seller of this in order to enable him to enforce his property rights. If the third party is unable to reimburse the seller for the judicial or extrajudicial costs arising in this connection, the buyer is liable to the seller for this.
(8) The seller will release the reserved goods and the items or claims taking their place upon request, at its discretion, insofar as their value exceeds the amount of the secured claims by more than 98%. (9) If the seller withdraws from the contract in the event of breach of contract by the buyer — in particular default of payment — he is entitled to demand the return of the reserved goods.
9 Final provisions
(1) The place of jurisdiction for all possible disputes arising from the business relationship between the seller and the client is, at the option of the seller, Kassel or the registered office of the client. Kassel is the exclusive place of jurisdiction for lawsuits against the seller. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this provision.
(2) The relationships between the seller and the client are subject exclusively to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) does not apply.
(3) Insofar as the contract or these general terms of delivery contain loopholes, those legally effective provisions which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these general terms of delivery if they had known the loophole are considered agreed.
Note:
The client acknowledges that the seller stores data from the contractual relationship in accordance with Section 28 Federal Data Protection Act for the purpose of data processing and reserves the right to transfer the data to third parties (e.g. insurance companies) to the extent necessary for the performance of the contract.