General Terms & Conditions
§1 General Provisions
1. Insofar as reference is made to the buyer in the following delivery, performance, and payment terms, this shall mean our contractual partner; insofar as reference is made to the seller, this shall mean us.
2. These delivery and payment terms form part of all offers and contracts for the delivery of goods and services by the seller, including ongoing and future business relationships.
3. Deviating agreements and terms and conditions are only binding if confirmed in writing by the seller.
4. If individual provisions are invalid, the remaining terms and conditions shall remain effective. Should any of the following terms be void, the business transaction to which these terms apply shall not be considered nullified. For the invalid part of the terms, the statutory provisions shall apply.
§2 Offer, Delivery Periods
1. Offers are non-binding; interim sale is reserved. The seller is entitled to withdraw from an offer—even if the buyer has already accepted it—if the seller subsequently becomes aware that the buyer is experiencing serious payment difficulties.
2. Delivery periods are subject to proper and timely self-delivery, unless the seller explicitly guarantees binding delivery dates in writing. Sales prices are only deemed fixed prices if confirmed in writing by the seller.
3. Samples and models are considered approximate representations regarding quality, dimensions, and color.
§3 Delivery, Delay, and Impossibility
1. For deliveries by the seller, the loading location is the place of performance; in the case of delivery, the risk is borne by the buyer. Delivery is made to the agreed location; if instructions are changed, the buyer shall bear the additional costs.
2. Delivery “free to construction site” or “free to warehouse” means delivery without unloading, provided that the access road is suitable for heavy trucks. If the delivery vehicle leaves the accessible road at the buyer’s instruction, the buyer is liable for any resulting damage. Unloading must be carried out promptly and properly by the buyer. Waiting times will be charged to the buyer.
3. Labor disputes or unforeseeable extraordinary events such as governmental measures, traffic disruptions, etc., release the seller from the delivery obligation for the duration of their effects or, in the case of impossibility, entirely.
4. In the event of delay in performance by the seller or impossibility of performance attributable to the seller, claims for damages by the buyer are excluded unless based on intent or gross negligence by the seller, a legal representative, or a vicarious agent.
5. If an agreed delivery date or delivery period is exceeded by more than 2 weeks, the buyer must grant the seller a reasonable grace period of at least 2 weeks. The notice must be given by registered letter. If the delivery obligation is not fulfilled after the expiration of the grace period, the buyer is entitled to withdraw from the contract. The withdrawal must be declared in writing without delay after expiration of the grace period.
§4 Payment
1. In case of cash sales, the purchase price is payable immediately upon receipt of the goods without deductions.
2. Sales on account require agreement. Unless otherwise agreed in writing, invoices are payable 14 days after invoice date without deduction.
3. The granting of cash discount requires that the buyer’s account contains no other overdue invoice amounts. Only the value of the goods excluding freight is eligible for cash discounts.
4. Settlement of invoices by check or bill of exchange constitutes payment on account and requires the seller’s consent; discount charges, bill fees, and costs are borne by the buyer.
5. The seller is entitled to charge interest to buyers who are merchants within the meaning of the Commercial Code from the due date onward, and to buyers who are not merchants from the time of default, in an amount equal to the credit costs incurred by the seller, but at least 3% above the discount rate of the Deutsche Bundesbank, plus VAT. The right to claim further damages remains reserved.
6. In the event of payment difficulties on the buyer’s side, particularly in the case of default, protest of check or bill of exchange, the seller is entitled to carry out further deliveries only against advance payment, to declare all outstanding — including deferred — invoice amounts immediately due, and, against return of bills taken as payment, demand cash payment or security.
7. Invoices of the seller are deemed accepted if not objected to in writing within 30 days of the invoice date. The seller shall inform the buyer of this with each invoice.
8. The buyer waives the right to assert a right of retention from earlier or other transactions of the ongoing business relationship. Offsetting counterclaims is only permissible if recognized by the seller and due for payment or legally established.
§5 Notice of Defects, Warranty, and Liability
1. The obligations under §§ 377 and 378 of the Commercial Code apply with the provision that buyers who are merchants must notify all identifiable defects, shortages, or incorrect deliveries within 5 working days after delivery—before processing or installation in any case—in writing. Buyers who are not merchants must notify all obvious defects within the same period. Transport damage must be reported to the seller immediately in writing. In case of delivery by rail, commercial freight transport, or other carriers, the buyer must complete the necessary formalities with the carrier. Breakage and shrinkage customary in trade cannot be objected to.
2. In the case of timely and justified notice of defects regarding faulty goods within the meaning of § 459(1) of the German Civil Code, the buyer is entitled to the statutory warranty rights, excluding claims for damages. Guaranteed characteristics within the meaning of § 459(2) are only those explicitly designated as assurances and do not constitute a guarantee by the seller unless expressly agreed upon.
3. Claims for damages by the buyer arising from positive breach of contract, fault during contract negotiations, or tort are excluded unless based on intent or gross negligence by the seller, a legal representative, or a vicarious agent.
§6 Retention of Title
1. The delivered goods remain the property of the seller as reserved goods until payment of the purchase price and settlement of all claims arising from the business relationship and associated claims arising from the purchase item. Inclusion of individual claims in a current account or balance recognition does not cancel the retention of title. If the seller assumes liability on a bill of exchange in connection with payment of the purchase price, the retention of title does not expire before the bill is honored by the buyer. In case of payment default, the seller is entitled to reclaim the reserved goods after issuing a reminder, and the buyer is obligated to return them.
2. If reserved goods are processed by the buyer into a new movable item, the processing is carried out for the seller without creating any obligation for the seller; the new item becomes the property of the seller. If processing occurs together with goods not belonging to the seller, the seller acquires co-ownership according to the ratio of the value of the reserved goods to the other goods at the time of processing. If reserved goods are combined, mixed, or blended with goods not belonging to the seller pursuant to §§ 947 and 948 of the Civil Code, the seller acquires co-ownership in accordance with statutory provisions. If the buyer acquires sole ownership by such combination, mixing, or blending, the buyer already now transfers co-ownership to the seller corresponding to the ratio of the reserved goods to the other goods. The buyer must store the seller’s property or co-owned goods free of charge.
3. If reserved goods are resold by the buyer—alone or together with goods not belonging to the seller—the buyer hereby assigns the resulting claims from the resale in the amount of the value of the reserved goods, including all ancillary rights and with priority over the remaining claims, to the seller. The seller accepts the assignment. The value of the reserved goods is the seller's invoice amount plus a 10% security surcharge, which is disregarded insofar as third-party claims oppose it. If the reserved goods are co-owned by the seller, the assignment of claims extends to the portion corresponding to the seller's co-ownership share. Sentence 2 of paragraph 1 applies accordingly.
4. If reserved goods are incorporated as an essential component into a third party's property, the buyer hereby assigns the resulting claims for compensation against the third party or the relevant party in the amount of the value of the reserved goods, including all ancillary rights and priority over the remaining claims, to the seller. The seller accepts the assignment. Paragraph 3 sentences 2 and 3 apply accordingly.
5. If reserved goods are incorporated as an essential component into the buyer’s property, the buyer hereby assigns the resulting claims from the commercial sale of the property or property rights in the amount of the value of the reserved goods, including all ancillary rights and priority over the remaining claims, to the seller. The seller accepts the assignment. Paragraph 3 sentence 2 applies accordingly.
6. The buyer is authorized to resell, use, or install the reserved goods only in the ordinary course of business and only under the condition that the claims under paragraphs 3, 4, and 5 actually pass to the seller. The buyer is not entitled to any other dispositions over the reserved goods, especially pledging or transfer by way of security.
7. The seller authorizes the buyer—subject to revocation—to collect the assigned claims under paragraphs 3, 4, and 5. The seller will not exercise its own right of collection as long as the buyer meets their payment obligations. Upon request by the seller, the buyer must name the debtors of the assigned claims and notify them of the assignment; the seller is entitled to notify the debtors as well.
8. The buyer must inform the seller immediately of any third-party enforcement measures involving the reserved goods or the assigned claims and provide the documents required for objection.
9. Upon cessation of payment, application for or initiation of insolvency proceedings, judicial or extrajudicial settlement proceedings, the right to resell, use, or install the reserved goods and the authorization to collect the assigned claims expire; in the case of protest of check or bill of exchange, the collection authorization also expires.
10. If the value of the securities exceeds the claims by more than 20%, the seller shall, at its choice, retransfer or release securities to that extent. Upon settlement of all claims of the seller from the business relationship, ownership of the reserved goods and the assigned claims shall pass to the buyer.
§7
1. It is only permitted to affix marks or names to products manufactured by the seller that could create the impression that the goods were supplied by a person or company other than the seller with the seller’s consent.
§8 Place of Jurisdiction
1. If the requirements for a jurisdiction agreement under § 38 of the Code of Civil Procedure are met, the place of jurisdiction for all claims of the contracting parties—including claims from checks and bills of exchange—is Stade.
Severability Clause
Should individual provisions of this contract be or become invalid or unenforceable after conclusion of the contract, the validity of the remainder of the contract shall remain unaffected. In place of the invalid or unenforceable provision, a valid and enforceable regulation shall apply whose effects come closest to the economic aim the contracting parties pursued with the invalid or unenforceable provision. The above provisions shall apply accordingly if the contract proves to contain omissions.