§1 General
1.1 The following terms and conditions apply to all our offers, sales, deliveries and services and become part of the contract.
1.2 We hereby expressly object to any deviating or supplementary general terms and conditions of the Buyer. They shall not apply even if the Buyer has based his order or other declaration on them.
§2 Offers and orders
2.1 Our offers are subject to change unless they are designated as binding in writing. An effective contract shall therefore only come into existence through our order confirmation or the delivery of the goods.
2.2 Dimensions, weights, illustrations, drawings and other documents that are part of our non-binding offers remain our property and are only approximate. They can only become a binding part of the contract if expressly confirmed by us in writing.
§3 Doubtful solvency
3.1 If, after conclusion of the contract, we become aware of circumstances that give rise to doubts about the Buyer’s ability to pay, we may make further deliveries dependent on advance payment of the goods by the Buyer. We may set the Buyer a reasonable deadline for the advance payment of the goods and withdraw from the contract if we do not receive the advance payment on time; the Buyer may provide security in the form of a bank guarantee instead of the advance payment. If we have already delivered the goods, the purchase price shall be due immediately without deduction, irrespective of any agreed payment deadlines.
3.2 Doubts about the Buyer’s ability to pay shall be justified, inter alia, if an application for the opening of insolvency proceedings has been filed against the Buyer’s assets or if the Buyer fails to make payments to us or third parties on time.
§4 Prices
4.1 Our prices are “ex works” unless otherwise agreed with the buyer. Packaging costs are not included in the price.
4.2 Statutory VAT is not included in our prices and will be shown separately on the invoice at the statutory rate applicable on the date of invoicing.
4.3 If more than 4 months elapse between the date of conclusion of the contract and the date of delivery, without this being due to a delay in delivery for which we are responsible, and if our valid price list has changed during this period, we may demand the list price valid on the date of delivery instead of the agreed purchase price. We shall send the Buyer a correspondingly amended order confirmation prior to delivery. In this case, the buyer may withdraw from his order with regard to the goods for which the price has been increased. He must declare his withdrawal in writing no later than 2 working days after receipt of the amended order confirmation. Transmission by fax or e-mail with mutual confirmation is sufficient.
§5 Delivery time
5.1 All stated delivery dates are non-binding and shall be deemed to have been agreed only approximately, unless we have expressly designated them as binding. In the case of non-binding delivery dates, delivery within 30 days of the stated delivery time shall in any case still be deemed to be on time.
5.2 If we are culpably unable to meet an expressly agreed deadline or are in default for other reasons, the Buyer shall grant us a reasonable grace period, which shall begin with 20 days. If this grace period expires without result, the buyer shall be entitled to withdraw from the contract.
5.3 If performance becomes temporarily impossible or considerably more difficult for us in whole or in part due to force majeure or other extraordinary circumstances for which we are not responsible, the agreed delivery period shall be extended by the duration of the impediment to performance. The same applies to a statutory deadline or a deadline set by the buyer for the provision of the service, in particular for grace periods in the event of default.
5.4 Prior to the expiry of the extended delivery time or performance period pursuant to paragraph 3, the Buyer shall neither be entitled to withdraw from the contract nor to claim damages. If the impediment to performance lasts longer than 8 weeks, both the Buyer and we shall be entitled to withdraw from the contract insofar as the contract has not yet been performed. If the buyer is contractually or legally (e.g. due to loss of interest) entitled to withdraw from the contract without setting a grace period, this right shall remain unaffected.
5.5 In the event of any delay in delivery, insofar as it is not due to intent or gross negligence, claims for damages of any kind are excluded.
§6 Shipping
6.1 Shipment shall be for the account of the Buyer. The risk shall pass to the Buyer upon loading of the goods, even if carriage paid delivery has been agreed and/or shipment is made with our own vehicles. We are not obliged to provide transport insurance.
6.2 Unless expressly agreed otherwise in writing, we shall be entitled to make partial deliveries to a reasonable extent, which shall be invoiced individually.
§7 Payment
7.1 Our invoices are payable within 30 days of the invoice date without deduction. If the contractual partner is a private individual, advance payment is agreed as the method of payment. The goods shall be delivered to the customer after receipt of payment.
7.2 The buyer shall be in default even without a reminder from us if he does not pay the purchase price within 5 days of the due date and receipt of the invoice or an equivalent payment schedule.
7.3 If the Buyer is in arrears with a payment, all his payment obligations arising from the business relationship with us – including those for which bills of exchange have been given – shall become due immediately. In this case, we shall be entitled to charge interest at the statutory rate from the date in question. The seller reserves the right to prove higher damages.
7.4 Bills of exchange shall only be accepted on account of performance after prior agreement and if discountable without granting a discount. Payments by check/bill of exchange shall also only be accepted on account of performance. The claim to the purchase price shall not expire until the bill of exchange has been honored in full. Bill of exchange and discount charges shall be charged separately and shall be payable immediately without deduction.
7.5 The Buyer shall only be entitled to set-off, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established, recognized by the Seller or are undisputed. The Buyer is only authorized to exercise a right of retention if his counterclaim is based on the same purchase contract.
§8 Warranty/Liability
8.1 The Buyer must inspect the goods received for completeness, transport damage, obvious defects, quality and their characteristics. Obvious defects must be reported to us in writing by the buyer within 1 week of delivery of the subject matter of the contract.
8.2 We are not obliged to provide a warranty if the buyer has not notified us in writing of an obvious defect in good time. Insofar as there is a defect in the goods for which we are responsible and the Buyer has notified us in writing in good time, we shall be obliged to provide subsequent performance, excluding the Buyer’s rights to withdraw from the contract or to reduce the purchase price, unless we are entitled to refuse subsequent performance on the basis of statutory provisions. The Buyer shall grant us a reasonable period of time for subsequent performance for each individual defect.
8.3 Subsequent performance may be effected at the Buyer’s discretion by remedying the defect or delivering new goods. We are entitled to refuse the type of subsequent performance chosen by the Buyer if it is only associated with disproportionate costs. During the subsequent performance, the reduction of the purchase price or withdrawal from the contract by the buyer are excluded. Rectification shall be deemed to have failed after the second unsuccessful attempt. If subsequent performance has failed or if the seller has refused subsequent performance altogether, the buyer may, at his discretion, demand a reduction in the purchase price or declare his withdrawal from the contract.
8.4 The Buyer may only assert claims for damages under the following conditions due to the defect if subsequent performance has failed or if we refuse subsequent performance. The right of the buyer to assert further claims for damages under the following conditions remains unaffected.
8.5 We shall be liable without limitation in accordance with the statutory provisions for intentional or grossly negligent breaches of duty and for damages resulting from injury to life, limb or health. Otherwise, we shall only be liable if the breached contractual obligation is recognizably of essential importance for achieving the purpose of the contract, and only to a limited extent up to the amount of the typically foreseeable damage.
8.6 The limitation of liability under paragraph 5 shall apply accordingly to claims for damages other than contractual claims, in particular claims in tort, with the exception of claims under the Product Liability Act. It shall also apply in favor of our employees, workers, staff, representatives and vicarious agents.
8.7 Insofar as we have given a guarantee of quality and/or durability with regard to the goods or parts thereof, we shall also be liable within the scope of this guarantee. However, we shall only be liable for damages which are based on the absence of the guaranteed quality or durability but which do not occur directly on the goods if the risk of such damage is clearly covered by the quality and durability guarantee.
8.8 We shall also be liable for damages caused by simple negligence, insofar as this negligence concerns the breach of such contractual obligations, compliance with which is of particular importance for achieving the purpose of the contract (cardinal obligations). However, we shall only be liable insofar as the damages are typically associated with the contract and are foreseeable. Otherwise, we shall not be liable for simple negligent breaches of secondary obligations that are not essential to the contract. The limitations of liability contained in §7 shall also apply insofar as the liability for the legal representatives, executive employees and other vicarious agents of the seller is concerned.
8.9 Any further liability is excluded irrespective of the legal nature of the asserted claim. Insofar as the Seller’s liability is excluded or limited, this shall also apply to the personal liability of its employees, workers, staff, representatives and vicarious agents.
§9 Retention of title
9.1 We reserve title to the goods (reserved goods) until all payments arising from the purchase contract have been received. The delivered goods shall only become the property of the buyer when he has fulfilled all his obligations arising from the business relationship, including ancillary claims, claims for damages and redemption of checks and bills of exchange. In the case of the check/bill of exchange procedure, the retention of title in all its forms listed here does not expire with the check payment, but only with the redemption of the bill of exchange.
9.2 The Buyer must inform us immediately in writing of all access by third parties, in particular of enforcement measures and other impairments of his property. The Buyer shall compensate us for all damages and costs incurred by a breach of this obligation and by measures required to protect against access by third parties.
9.3 If the Buyer fails to meet his payment obligation despite a reminder from us, we may demand the surrender of the goods subject to retention of title which are still his property without setting a prior deadline. The transportation costs incurred shall be borne by the Buyer. The seizure of the reserved goods by us shall always constitute a withdrawal from the contract. After retention of the reserved goods, we are authorized to sell them. The realization proceeds shall be offset against our outstanding claims.
9.4 The object of purchase shall remain the property of the Seller by way of security until all claims – including all balance claims to which the Seller is entitled from current account credits – to which the Seller is entitled against the Buyer now or in the future for any legal reason have been fulfilled. The seller shall release this on request if the value of the security property exceeds the amount of the claims by 20% on a sustained basis.
§10 Place of fulfillment
The place of performance for payments is Großzöberitz, for our deliveries of goods the place of dispatch.
§11 Data processing
The buyer agrees that we may process, in particular store or transmit to a credit protection organization, the data received about the buyer in connection with the business relationship in compliance with the Federal Data Protection Act for the fulfilment of our own business purposes, insofar as this is done within the scope of the purpose of the contract or is necessary to safeguard our legitimate interests and there is no reason to assume that the buyer’s legitimate interest in the exclusion of the processing, in particular the transmission, of this data prevails.
§12 Place of jurisdiction and applicable law
12.1 The contractual relationship between the Buyer and us shall be governed exclusively by the law of the Federal Republic of Germany, even if the Buyer’s place of residence or business is abroad. The application of the Uniform Law on the International Sale of Goods and the law on the conclusion of international sales contracts for movable goods is excluded.
12.2 The Buyer is not entitled to assign claims arising from the purchase contract without the Seller’s consent.
12.3 If the buyer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for both parties – also for actions on bills of exchange and checks – shall be Großzöberitz. However, we are also entitled to sue the buyer at his general place of jurisdiction.
