GENERAL CONDITIONS OF SALE
1. GENERAL – SCOPE OF APPLICATION
(1) The terms and conditions of sale shall apply exclusively; any terms and conditions of the buyer which conflict with or deviate from the terms and conditions of sale shall not be recognized unless the seller has given their exclusive written consent to their validity. The terms and conditions of sale shall also apply if the seller carries out the delivery to the buyer without reservation in the knowledge that the buyer’s terms and conditions conflict with or deviate from the terms and conditions of sale.
(1) The order is considered tacitly accepted if it has not been rejected within 14 days of the date of issue. Acceptance of the order shall be subject to the reservation of self-delivery or the possibility of delivery.
(2) Amendments to a contract or additions to a contract are only valid if they have been confirmed in writing by the seller.
3. PLACE OF PERFORMANCE, DELIVERY AND ACCEPTANCE
(1) The place of performance for all services under the supply contract is the place of the seller’s commercial establishment. The goods are delivered from a domestic production site. These shipping costs are borne by the buyer. The buyer may determine the choice of carrier. The goods are to be sent uninsured. A dispatch notification can be agreed upon. A flat-rate storage surcharge can be charged for deliveries from an external warehouse.
(2) Packaging costs for special packaging are borne by the buyer. Sorted and, in the case of combinations, sales-ready partial shipments must be made promptly and must be announced in advance. Unsorted items are only permitted with the consent of the buyer.
(3) Insofar as delivery on the dates specified in the order is not possible without culpable conduct on the part of the seller, in particular untimely self-delivery or a case of force majeure, such as war, strike, epidemics, production stoppages, official measures in the exporting and receiving country, refusal of import and export licenses, changes in import or export regulations after conclusion of the contract, claims for damages due to non-delivery or delayed delivery are excluded.
(4) Claims of the buyer for damages instead of performance are limited to the foreseeable damage in case of non-delivery in case of gross negligence of the seller. In case of simple negligence, corresponding claims for damages are excluded.
(5) If the seller is in default for reasons for which they are responsible, liability for compensation for damage caused by delay in the case of simple negligence shall be excluded.
(6) If the buyer is in default with the acceptance of the object of purchase or if they violate other obligations to cooperate, the seller shall be entitled to demand compensation for the resulting damage including any additional expenses. If the seller is still in possession of the goods, they shall be entitled to bill the buyer after expiry of a reasonable period of grace granted to the buyer; the buyer shall be liable to the seller for all losses, damages and costs arising therefrom.
4. TRANSFER OF RISK, INSURANCE, FREIGHT, OTHER COSTS
(1) The seller delivers unpaid ex warehouse, unless otherwise agreed.
(2) It is up to the buyer to take out transport insurance for transport damages.
5. NOTICE OF DEFECTS, WARRANTY
(1) The offer sample shall apply on the basis of the quality standard within the tolerances customary in the trade.
(2) The warranty rights of the buyer presuppose that the buyer has duly fulfilled their obligations to examine the goods and give notice of defects in accordance with Section 377 HGB. Complaints of obvious defects must be made in writing within 6 days after delivery of the goods to the place of destination, complaints of hidden defects immediately after their discovery.
(3) In case of defects of the purchased goods, the warranty claims of the buyer are limited to the right of supplementary performance. However, if the subsequent performance fails, the buyer is entitled to reduce the price or, at their option, to withdraw from the purchase contract.
(4) The seller is liable for all damages of the buyer resulting from injury to life, body or health. For other damages, the seller is liable for gross negligence. In case of simple negligence the seller is not liable for other damages. In the case of simple negligence, there shall be no liability for property damage that has not occurred to the delivery item itself or for loss of profit or other financial losses.
(5) The warranty period is one year, calculated from the transfer of risk. This period is a period of limitation and also applies to claims for compensation for consequential harm caused by a defect, provided that no claims in tort are asserted.
(6) Insofar as the liability of the seller is excluded or limited, this shall also apply to the personal liability of the employees, workers, staff, representatives and vicarious agents of the seller.
6. PAYMENT TERMS
(1) The invoice is issued on the day of delivery or when the goods are made available. A postponement of the due date (value date) is generally excluded.
(2) Invoices are payable according to offer, without deduction.
(3) Payments are always used to settle the oldest due debt items plus the default interest accrued thereon. In any case, the postmark is decisive for the date of dispatch of the payment. In the case of bank transfer, the day prior to the credit entry of the seller’s bank shall be deemed the day of dispatch of the payment.
(4) The buyer shall only be entitled to offsetting rights if their counterclaims have been legally established, are undisputed or acknowledged by the seller. Furthermore, they are only authorized to exercise a right of retention insofar as their counterclaim is based on the same contractual relationship.
(5) Before complete payment of due invoice amounts including interest, the seller is not obligated to any further delivery from any current contract. We reserve the right to assert damages caused by delay.
In case of default of payment by the buyer or in case of imminent insolvency or other substantial deterioration of the buyer’s financial circumstances, the seller may demand cash payment before delivery or withdraw from the contract or claim damages after setting a grace period of 12 days for outstanding deliveries from any current contract under discontinuation of the term of payment.
7. RETENTION OF TITLE
(1) The seller retains title to the purchased goods until receipt of all payments from the business relationship with the buyer. Insofar as the seller agrees with the buyer on payment of the purchase price debt on the basis of the check/bill of exchange procedure, the reservation shall also extend to the payment by the buyer of the bill of exchange accepted by the seller and shall not expire by crediting the seller with the check received.
(2) The buyer is obliged to handle the purchased goods with care as long as they are the property of the seller; in particular, they are obliged to insure them sufficiently at their own expense against fire, water damage and theft at replacement value.
(3) In the event of attachments and other interventions by third parties, the buyer shall immediately notify the seller in writing so that the seller can take legal action in accordance with Section 771 ZPO. If the third party is not able to reimburse the seller for the judicial and extrajudicial costs of a lawsuit according to Section 771 ZPO, the buyer is liable for the failure of the seller.
(4) The buyer is entitled to resell the purchased item in the ordinary course of business; they now assign to the seller all claims in the amount of the final invoice amount (including value added tax) that arise from the resale against their customers or third parties. The buyer remains authorized to collect this claim even after the transfer. The authority of the seller to collect the claim themself remains unaffected. The seller undertakes not to collect the claim as long as the buyer meets their payment obligations from the proceeds received, is not in default of payment and in particular no application for the opening of insolvency proceedings has been filed or payments have been suspended. If this is the case, however, the seller can demand that the buyer notifies them of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(5) The processing or transformation of the object of purchase by the buyer is always carried out for the seller. If the purchased goods are processed with other objects not belonging to the seller, the seller shall acquire co-ownership of the new objects in the ratio of the value of the purchased goods to the other processed objects at the time of processing. In all other respects, the same shall apply to the item resulting from processing as to the purchased goods delivered under retention of title.
(6) The seller undertakes to release the securities to which they are entitled at the buyer’s request if the value of the securities exceeds the claims to be secured; the seller shall be responsible for selecting the securities to be released.
8. PLACE OF JURISDICTION
(1) If the buyer is a merchant, the place of jurisdiction is Krefeld. In all other respects, the place of jurisdiction (also for actions on bills of exchange and check claims) shall be, at the option of the plaintiff, the place of the commercial establishment of one of the parties or the headquarters of the specialist or cartel organization responsible for the supplier (location). The first court called upon shall have jurisdiction.