General Conditions of Sale (as at 06/03/2018)
1 General provisions, scope
1.1 We supply goods exclusively on the basis of the following General Conditions of Sale (GCSs). This also applies for all future transactions, insofar as these are of a similar nature, in particular including those which are entered into on the basis of a verbal order, without explicit reference needing to be made to these GCSs.
1.2 The Buyer’s Terms and Conditions shall not apply, even if application has not been explicitly refuted. Any deviating or contradictory conditions shall only apply if they have been accepted by us in writing.
1.3 These General Conditions of Sale shall only apply for entrepreneurs in the meaning intended in Article 310 German Civil Code (BGB).
2 Entering into the contract and the content thereof
2.1 Our offers shall be subject to change and non-binding.
2.2 Order of the goods by the Buyer constitutes a binding contractual offer. Insofar as not stated otherwise in the order, we are entitled to accept this contractual offer within 4 weeks of receipt by us.
2.3 Acceptance may be communicated by a written order confirmation or by delivery of the goods to the Buyer.
2.4 Our sales staff are not entitled to enter into verbal agreements with the Buyer in connection with the contract which deviate from these General Conditions of Sale.
2.5 All arrangements made between us and the Buyer for the purpose of implementing this contract are set down in the present contract in writing. There are no oral, collateral agreements.
3 Delivery or performance period
3.1 The delivery period shall be stipulated by us in the order confirmation. Where this is not the case, the delivery period shall be six months. Compliance with the delivery period also assumes timely and proper fulfilment of the Buyer’s obligations.
3.2 Unless agreed otherwise, we are entitled to determine the type of transport (in particular the transport company, route and packaging). The choice of carrier rests with us.
3.3 The cost of delivery is borne by the recipient. It is either delivered with carriage to be paid or against an invoice for the delivery costs incurred.
3.4 We are entitled to make partial deliveries if
• the partial delivery can be used by the Buyer within the context of the contractually-agreed purpose,
• the delivery of the remaining goods ordered is ensured and
• no resultant, significant additional expenditure or additional costs accrue to the Buyer (except where we notify our readiness to cover such costs).
3.5 Deliveries in advance of the delivery period are permitted. Delivery dates refer to the point in time at which the goods were handed over to the carrier.
3.6 We shall not be responsible for any delays in delivery or the provision of services resulting from force majeure or events which make delivery significantly more difficult or even impossible, in particular strikes, lockouts, official directives etc., even if they affect our suppliers or their suppliers, and even in the case of bindingly agreed delivery deadlines. Rather, they entitle us to delay the delivery for the duration of the impediment plus a reasonable lead time of at least 18 calendar days.
3.7 We are liable in accordance with the statutory provisions, insofar as default in delivery pertains to intentional or grossly negligent breach of contract for which we are responsible; fault by our representatives or agents is to be attributed to us. Insofar as default in delivery is not caused by a grossly negligent contractual violation on our part, our liability for damages shall be limited to foreseeable, typically-occurring damages.
3.8 We are also liable in accordance with the statutory provisions, insofar as default in delivery is caused by culpable violation of a fundamental contractual obligation; in such cases, however, our liability for damages shall be limited to foreseeable, typical-occurring damages.
3.9 In the event of delays in delivery or in providing services, the Buyer undertakes to notify us, upon our request, within a reasonable period, as to whether it intends to withdraw from the Contract as a result of the delay and/ or to demand compensation in lieu of delivery or continues to require delivery.
3.10 If dispatch or delivery of the goods is delayed by more than 1 month from notification of readiness at the Buyer’s request, the Buyer may be charged storage costs for each month commenced at a rate of 1% of the price of the order in question, but not more than a total of 5%. Either party has the right to prove that the storage costs were higher or lower.
4 Transfer of risk, default of acceptance, packaging, transport insurance
4.1 The risk of possible loss or deterioration of the goods transfers to the Buyer at the latest on handing over of the goods. However, in the case of mail-order purchases, the risk of possible loss or deterioration of the goods and the risk of delay transfers to the Buyer as soon as the goods are handed over to the forwarding agent, the carrier or another person or organisation charged with transport of the goods.
4.2 In the event that the Buyer defaults on acceptance, the risk shall transfer to the Buyer. We shall further be entitled to demand compensation for damages that we incur in connection with this, including any additional expenses. We reserve the right to make further claims.
4.3 The goods are packaged with the utmost care and using our best discretion.
4.4 If desired by the Buyer, we will insure the delivery against all the standard transport risks at the Buyer’s expense.
5 Warranty, limitation period
5.1 The statutory provisions apply for the rights of the Buyer in relation to defects in goods or title, unless otherwise provided hereinafter. In all cases, the special statutory provisions on final delivery to a consumer shall remain unaffected (recourse against suppliers).
5.2 The basis for our liability for defects is primarily the agreements entered into regarding the characteristics of the goods. It is a prerequisite for defect claims that the Buyer has met its statutory duty to inspect the goods and notify defects (Articles 377, 381 German Commercial Code). If a defect becomes apparent on delivery, during inspection or at a later point in time, we must be informed of this in writing immediately. Where the Buyer fails to carry out a proper inspection or and/or to notify us of the defect, liability on our part for the unreported, late reported or not properly reported defect is excluded as per the statutory regulations.
5.3 Where the delivered goods are defective, we can decide on supplementary performance, either by rectifying the defect or by delivery of a defect-free object. Our right to refuse supplementary performance under the statutory provisions remains unaffected.
5.4 The Buyer must provide us with the time and opportunity required for the supplementary performance, in particular handing over the goods concerned for inspection purposes. In the event of replacement delivery, the Buyer must return the defective goods in accordance with the statutory regulations.
5.5 If supplementary performance is unsuccessful or if a deadline for supplementary performance set by the Buyer expires unsuccessfully or is unnecessary under statutory provisions, the Buyer can withdraw from the purchase agreement or reduce the purchase price. There is no right of withdrawal in the event of an insignificant defect.
5.6 Claims for defects become time-barred after 12 months. This limitation period shall not apply to claims by the Contractor in respect of injury to life, health or limb or as a result of the wilful or grossly negligent violation of contractual obligations by us or our agents, which become time-barred according to the statutory regulations.
5.7 Claims by the Buyer for expenditure necessitated for the purpose of rectification, in particular, transport, travel, labour and materials costs, are excluded, insofar as these are increased by virtue of of the delivered item subsequently having been transferred to a place other than the Buyer’s place of business, unless such transfer is consistent with the intended use.
6 Terms of payment, ban on offsetting
6.1 Unless agreed otherwise in the individual case, the prices applicable at the time of entering into the contract plus the statutory VAT (purchase price) shall apply.
6.2 The sums invoiced shall be due within 14 days from the invoice being issued and the goods being delivered or accepted.
6.3 Once this deadline for payment has expired, the Buyer shall be deemed in default. The statutory applicable default interest shall be charged on the purchase price for as long as the Buyer is in default. We reserve the right to claim further damages in respect of default.
6.4 Payment shall only be deemed to have been made when we are able to dispose of the funds. We are not obliged to accept cheques or bills of exchange in payment. Acceptance of the same is subject to separate prior agreement. Bills of exchange are only accepted on account of performance and any costs incurred will be charged to the Buyer. In the case of cheques, payment shall only be deemed to have been made once the cheque has cleared.
6.5 The Buyer only has rights of set-off or retention where its claims have been legally established or are undisputed. This does not, however, affect any opposing rights on the part of the Buyer in the event of defects in the goods purchased.
7 Retention of Title
7.1 The goods supplied (collateral) shall remain our property until such time as all receivables owed to us by the Buyer, either now or in the future, have been settled. Insofar as the Buyer acts in violation of the contract, in particular if he is in default on payment of a sum owed, we shall be entitled to withdraw from the contract after allowing the Buyer a reasonable period in which to meet its obligations.
7.2 The Buyer must treat the collateral with due care and diligence. He must insure it adequately at his own expense.
7.3 The Buyer may use the collateral and resell it in the ordinary course of business provided that he is not in default of payment. However, he may neither pledge the collateral nor assign it as security. The Buyer shall assign all claims to payment from his customers from sale of the collateral and those claims in connection with the collateral on the part of the Buyer against his customers or a third party arising on any legal basis whatsoever to us in their entirety by way of security. We accept this assignment.
7.4 The Buyer shall be entitled to collect the receivables assigned to us on his own account and in his own name on our behalf unless we withdraw the authorisation to do so. However, insofar as the Buyer acts in violation of the contract, in particular if he falls into default on payment of a sum due, we are entitled to demand from the Buyer that he notify us of the assigned receivables and the relevant debtors and provide us with all necessary information to assert our claims.
7.5 In the event of seizure or other action by third parties in respect of the reserved goods, the Buyer must immediately point out our ownership of said goods and inform us in writing of this fact immediately.
7.6 If requested by the Buyer, we are obliged to release securities provided to us insofar as the value of the securities exceeds the value of the claims secured by more than 10%. We are, however, entitled to choose which securities to release.
8 Impossibility, adaptation of the contract
8.1 If delivery or the provision of services is impossible, the Buyer shall be entitled to claim damages. This does not apply if we are not responsible for the impossibility. However, such a claim for damages by the Buyer shall be limited to 10% of the value of the delivery which cannot be used due to the impossibility. This limitation will not apply in the event of mandatory liability for intent, gross negligence or injury to life, limb or health. This does not lead to a change in the burden of proof to the disadvantage of the Buyer. The right of the Buyer to withdraw from the contract remains unaffected.
8.2 Insofar as unforeseen events resulting from force majeure or events which make delivery significantly more difficult or even impossible (e.g in the event of strikes, lockouts, official directives etc.) significantly alter the commercial importance or contents of the delivery or have a considerable effect on our business, the contract will be adapted appropriately in good faith. To the extent that this is not justifiable from an economic point of view, we are entitled to withdraw from the contract.
8.3 In this case, we must notify the Buyer immediately that we become aware of the consequences and the event, even where we initially agreed an extension of the delivery period with the Purchaser.
9 Limitation of liability
9.1 Damage claims by the Buyer on any legal grounds, in particular due to violation of obligations under the contract or liability in tort, are excluded. This does not apply where liability is mandatory, for example in accordance with German Product Liability Law, in the event of wilful intent, gross negligence, as a result of injury to life, health or limb or as a result of the violation of fundamental contractual obligations (an obligation, which must be fulfilled for performance of the contract to be possible and which the contractual partner is routinely entitled to expect will be complied with). Damages for a violation of fundamental contractual obligations are, however, limited to reasonably foreseeable, contractually-typical damages insofar as there is no wilful intent or gross negligence and liability does not result from injury to life, health or limb. These provisions do not lead to a change in the burden of proof to the disadvantage of the Buyer.
9.2 The limitations of liability resulting from the above also apply for breach of obligations by persons, for whose fault we are responsible according to statutory provisions. They shall not apply insofar as we conceal a defect or have assumed a guarantee for characteristics of the goods and for claims of the Buyer in accordance with the German Product Liability Law.
9.3 Insofar as the Buyer is entitled to claim damages pursuant to this provision, any claims shall become time-barred once the limitation periods applicable for claims for defects have expired.
10 Applicable law, place of jurisdiction, final provision
10.1 For the contractual relationship between ourselves and the Buyer, including entering into and performing the relevant contract, the substantive law of the Federal Republic of Germany applies to the exclusion of the international UN sales law (CISG).
10.2 The sole place of jurisdiction, including international jurisdiction, for any disputes arising directly or indirectly in connection with this contract shall be our headquarters in Wuppertal, Germany. We are, however, also entitled to initiate claims at the Buyer’s place of jurisdiction in any and all cases.
11 Contractual language
Where Suppliers have been provided with an English translation of these GCSs, in the event of deviations only the German version applies.