General Terms and Conditions of Sale and Delivery
§ 1 General – Scope
(1) Our General Terms and Conditions of Sale and Delivery only apply in relation to companies within the meaning of § 14 of the Civil Code of the Federal Republic of Germany (BGB), i.e. natural or legal persons acting in their commercial or independent professional interest during the purchase of the goods and associated services (hereinafter the “customers”).
(2) Our sales terms and conditions apply exclusively. We do not recognize any of the customer’s terms and conditions that conflict with or deviate from our terms, unless we explicitly agreed in writing to their applicability. Our sales terms and conditions apply even if we accept the supplier's delivery without any reservations while being aware of customer sales terms that conflict with or deviate from our sales terms and conditions.
§ 2 Offers and purchase orders – Offering documents
(1) Our offers are non-binding with regard to price, quantity and delivery time. Orders, including orders accepted over the phone, will only become valid if confirmation is received in writing or text form. The content of the delivery contract is determined by our order confirmation. In the event of an immediate delivery, the order confirmation can be replaced with an invoice.
(2) We reserve all proprietary and copyrights regarding our images, drawings and other documents. Before forwarding these items or documents to third parties or using them for marketing purposes, particularly on the internet, the customer must obtain our express written consent. This also applies to the time after the contractual relationship (delivery contract) ends.
(3) The goods are delivered for sale in stationary retail stores. A sale of the goods on markets, per mail-order or over the internet requires a prior written notification by the customer.
§ 3 Prices – Payment terms
(1) The agreed prices apply. The prices are in EURO, unless agreed otherwise, and do not include sales tax. The sales tax is invoiced in a separate line item at the respectively applicable rate in accordance with the respective tax provisions.
(2) Prices do not include packaging and shipping costs. We apply a surcharge of EUR 10.00 for individual orders.*
(3) Unless agreed otherwise, free carrier as of Cologne (“FCA – Cologne” Incoterms 2010) applies.
(4) An increase of the prices listed in the contract is permitted if the agreed delivery period exceeds 4 months. The increase may be up to 3.0% for delivery periods of up to 6 months and may not exceed 6.0% for longer delivery terms. A precondition for a price increase is an increase in total production costs (e.g. increases in material costs and wages, import fees and taxes). If the price increase is more than 5.0%, the customer has the right to withdraw from the contract by submitting a written statement within 3 weeks after receiving the price increase notification.
(5) Unless agreed otherwise, our invoices are due and payable in euro with a discount of 4.0% within 10 days after the invoice date, with a discount of 2.25% within 30 days after the invoice date, and without discount within 60 days after invoice date to one of our bank accounts. Goods in lots, samples, and extraordinary items are to be paid immediately in net cash without deductions. Statutory provisions apply with regard to any payment default consequences.
*Individual order = less than 100 € net value or less than 6 parts in the total order.
§ 4 Delivery time – Delay
(1) Binding delivery dates and periods must be expressly agreed to in writing. In the event of non-binding or approximate (approx., around, etc.) delivery dates and periods, we will make our best effort to adhere to them. We do not consider unilateral customer prescriptions to be binding, unless we have expressly agreed to them in writing. Transactions requiring delivery at fixed times must be expressly specified as such and confirmed by us in writing.
(2) Partial deliveries are permitted to the extent that this is acceptable to the customer.
(3) We will notify our customers in writing or in text form in a timely manner if we do not receive deliveries or services at all or in full or if we receive them incorrectly, incomplete or not in time from our suppliers or if force majeur events occur, despite proper stocking and for reasons beyond our control. In this case, we have the right to delay the delivery by the duration of the impediment or to withdraw from the contract in full or in part with regard to the not yet fulfilled contract part if we have fulfilled our aforementioned duty to notify and have not assumed the procurement risk. Force majeure include strikes, lockouts, interventions by public authorities, energy and raw materials shortages, transport bottlenecks or operational impediments through no fault of our own, such as fire, flooding and machine breakdowns, and any other impediments which, upon objective consideration, occur through no fault of our own. If a delivery date or delivery period has been agreed to with binding force and if, due to events occurring as per this paragraph, the agreed to delivery date or delivery period has not been met, the customer has the right, after the expiry of a reasonable grace period, to withdraw from the as of yet unfulfilled portion of the contract if a continuation of the contract must be objectively considered to be unreasonable for the customer. In such a case, the customer has no right to any further claims.
(4) If the customer grants us a reasonable grace period after a delivery delay, the customer has the right to withdraw from the contract after this grace period has expired without delivery from us. The customer is only entitled to claims for damages due to non-fulfillment in the amount of the contract-typical and foreseeable damage if the non-fulfillment is based on premeditation or gross negligence or a breach of a material contractual obligation (for a definition of the term see § 7 (1)a))
§ 5 Transfer of risk
The risk of an accidental loss of the goods is transferred to the customer when the goods are provided for pick-up or, at the latest, when the goods are loaded onto the means of transport. We are not obliged to explicitly notify the customer of the provision of the goods. The customer is obliged to protect its rights against third parties, in particular companies engaged to transport the goods.
§ 6 Warranty and notification of defect
(1) The customer must immediately inspect the delivered goods for defects with regard to quantity and quality after receiving them and notify us of any defects without delay, but no later than 7 days after delivery; otherwise the goods are deemed accepted. We must be immediately notified of any defects that are not detectable during this inspection when they are detected. Any complaints must be sent to us in writing specifying the order, invoice and delivery note number.
A complaint not submitted to us in time precludes any claim by the customer for breach of duty due to poor performance.
The customer must submit complaints due to hidden defects immediately after these defects have been detected within the limitation period specified in § 6 (3). Complaints due to defects must always contain a detailed description of the defect.
(2) In the event of justified complaints submitted within the respective complaint period, we will remedy the defect or deliver defect-free goods at our discretion (supplementary performance). In the event of a delivery regress (§§ 478, 479 BGB), the right of selection is at the customer’s discretion. The customer must request authorization before returning the goods. The title for replaced goods is transferred back to us. If we do not remedy the defects or the supplementary performance of defective goods fails within the set reasonable grace period (whereby we have the right to two remedy attempts), or if we refuse supplementary performance, or if supplementary performance is unreasonable for us, the customer has the right to withdraw from the contract, a deduction from remuneration (reduction), reimbursement of expenditures and claims for damages within the limits specified in § 7 in accordance with statutory provisions. The right to withdrawal and reduction does not apply in the event of only a minor defect, but the right to assert claims for damages in accordance with § 7 remains unaffected in this case.
(3) Claims resulting from defects have a limitation period of one year after transfer of risk. This does not apply in the cases that are subject to § 7 (1) to (7).
§ 7 Liability, exclusion of liability and limitation of liability
(1) We are generally only liable for premeditated and grossly negligent actions by us and our representatives and agents. Our and our legal representatives’ and agents’ liability for minor negligence is excluded. The aforementioned liability exclusion does not apply to:
a) The violation of material agreement obligations; material agreement obligations are those the fulfillment of which characterizes the contract and on which the customer can rely;
b) The loss of life, injury to body and damage to health;
c) The assumption of a warranty for the quality of a service or a procurement risk that we expressly assumed;
d) Bad faith;
e) Claims based on product liability law; or
f) Other cases of mandatory legal liability.
(2) To the extent that we cannot be accused of a premeditated breach of duty or that a case of loss of life, injury to body or damage to health or other cases of mandatory legal liability exist, we can only be held liable for contract-typical and foreseeable damage.
(3) Liability for indirect damage and consequential damage is excluded, unless we acted in a premeditated manner and grossly negligent or breached a material contractual duty (for a definition of the term see § 7(1) a)).
(4) Any further liability for compensation for damages as provided for in the previous paragraphs – without recourse to the legal nature of the asserted claim – is excluded. This in particular applies for claims for damages arising from culpability when the contract is concluded, due to other breaches of duty or due to tortious claims for compensation for material damage pursuant to § 823 BGB.
(5) The liability exclusions or limitations in accordance with the previous paragraphs (1) to (4) apply equally to our executive and non-executive employees and other agents and sub-contractors.
(6) Customer claims for compensation of damages from this contractual relationship can only be asserted within a limitation period of one year as of the start of the statutory limitation period. This does not apply in the cases that are subject to § 7 (1) a) to f).
(7) A reversal of the burden of proof is not associated with the aforementioned provisions.
§ 8 Retention of title
(1) We retain title to any goods we delivered until the total amount invoiced in the business relationship has been paid in full. This also applies if the purchase price for certain goods deliveries specified by the customer have already been paid as the property subject to retention of title is used as security against our balance claim.
(2) The customer has the right to resell the purchased item in a proper business transaction. Other disposals, in particular pledges or pledged ownership by way of security, are not permitted. If the goods subject to retention of title are not immediately paid by the third-party purchaser, the customer may only resell under retention of title. The right for resale of the goods subject to retention of title no longer applies if the customer stops its payments or defaults on its payments. This also applies mutatis mutandis if the customer is part of a group of companies and/or if one of the facts of the previous sentence occurs in the parent or superordinate company of the customer.
(3) The customer hereby assigns to us all receivables including all securities and ancillary rights arising to the customer from or in relation to the resale of the goods subject to retention of title against the end purchaser or third parties. The customer must not conclude any agreements with its purchasers that exclude or impair our rights in any way or that reverse the advance assignment of the claim. In the event of a sale of goods subject to retention of title together with other items, the claim against the third-party purchaser is considered assigned in the amount of the delivery price agreed between us and the customer, provided that it is not possible to determine the amounts to be allocated to the individual goods from the invoice.
(4) The customer retains the right to collect the claim assigned to us until revoked by us whereby this revocation is admissible at any time. At our request, the customer is obliged to transmit to us the required information and documentation needed to collect the assigned claim and, unless done by us, to immediately notify its purchasers of the assignment to us.
(5) We undertake to release the securities due to us upon the customer’s request to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10.0%; the selection of the securities to be released is incumbent upon us.
(6) From the moment the customer stops payments or if the customer submits an application for insolvency proceedings, the customer may no longer sell, process, combine or mix goods subject to retention of title. In this case, the customer must undertake to immediately separately store and label the goods subject to retention of title and manage the amounts that the customer receives from claims assigned to us in trust for us.
(7) If the retention of title, explicitly agreed to herein, is not acknowledged by the law of the country in which the goods are delivered or is only acknowledged under certain conditions, the customer is obliged to inform us accordingly at the latest at the conclusion of the contract. If the law of the country does not permit the retention of title or the extended retention of title, but permits the assertion of other rights relating to the delivery goods that are similar to the retention of title in that they are used for security purposes, we hereby state that we will exercise these rights. The customer undertakes to assist us in the fulfillment of the respectively required measures (in particular compliance with formal provisions).
§ 9 Property rights – Confidentiality
(1) The customer warrants that it does not violate any third-party rights/property rights with the items specifically produced by us according to the customer’s specifications as ordered by the customer. The customer indemnifies us against any potential third-party claims in this respect. In the event that third-party rights/property rights are asserted, we further have the right to immediately stop production and assert a respective claim for compensation of damages.
(2) The customer undertakes to keep confidential information secret. This applies even after the contract relationship has been terminated.
§ 10 Data protection
§ 11 Miscellaneous
(1) The law of the Federal Republic of Germany applies for these Terms and Conditions of Sale and Delivery between us and the customer excluding all international and supranational (contractual) legal systems in particular the UN Convention of Contracts for the International Sale of Goods (CISG). The prerequisites and impacts of the retention of title are subject to the law prevalent at the respective location of the item, provided that accordingly the selection of applicable law in favor of German law is inadmissible or ineffective.
(2) Exclusive – also international – place of jurisdiction for all claims arising from our business relationship with the customer, in particular from contracts or with regard to their effectiveness, is our registered office in Cologne. We are at our discretion entitled, however, to also sue the seller at any other location or special place of jurisdiction.
(3) Unless otherwise agreed, our registered office is also the place of fulfillment.
(4) If a provision is or becomes ineffective, then this does not affect the validity of the remaining provisions herein.