GTC
§ 1 Validity
(1) All deliveries, services and offers of the Seller are made exclusively on the basis of these General Terms and Conditions of Sale. These are an integral part of all contracts that the Seller concludes with its contractual partners (hereinafter also referred to as “Buyer” or “Customer”) for the deliveries or services offered by it. They shall also apply to all future deliveries, services or offers to the Client, even if they are not separately agreed again.
(2) Terms and conditions of the Client or third parties shall not apply, even if the Seller does not separately object to their validity in individual cases. Even if the Seller refers to a letter that contains or refers to the terms and conditions of the Client or a third party, this shall not constitute agreement with the validity of those terms and conditions.
§ 2 Offer and conclusion of contract
(1) All offers of the Seller are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The Seller may accept orders or commissions within twenty-one days of receipt.
(2) The legal relationship between the Seller and the Customer shall be governed solely by the purchase contract concluded in writing, including these General Terms and Conditions of Sale. This fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Verbal promises made by the Seller prior to the conclusion of this contract shall not be legally binding and verbal agreements between the contracting parties shall be replaced by the written contract, unless it is expressly stated in each case that they shall continue to be binding.
(3) Additions and amendments to the agreements made, including these General Terms and Conditions of Sale, must be made in writing to be effective. With the exception of managing directors or authorized signatories, the Seller’s employees are not entitled to make any verbal agreements deviating from this. Telecommunication, in particular by fax or e-mail, is sufficient to comply with the written form requirement, provided that a copy of the signed declaration is sent to
.
(4) Information provided by the Seller on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, illustrations) are only approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Customary deviations and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose.
(5) The Seller reserves the right of ownership or copyright to all offers and cost estimates submitted by him as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the Client. The Customer may not make these items accessible to third parties, disclose them, use them itself or through third parties or reproduce them without the express consent of the Seller. At the Seller’s request, the Client must return these items to the Seller in full and destroy any copies made if they are no longer required by the Client in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Excluded from this is the storage of electronically provided data for the purpose of normal data backup.
§ 3 Prices and terms of payment
(1) The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be invoiced separately. The prices are quoted in EURO ex works plus packaging, statutory VAT, customs duties for export deliveries as well as fees and other public charges.
(2) If the agreed prices are based on the Seller’s list prices and delivery is to take place more than four months after conclusion of the contract, the Seller’s list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).
(3) Invoice amounts are to be paid within seven days without any deduction, unless otherwise agreed in writing. The date of receipt by the Seller shall be decisive for the date of payment. Payment by check shall be excluded unless agreed separately in individual cases. If the customer fails to pay by the due date, the outstanding amounts shall bear interest at 5% p.a. from the due date; the right to claim higher interest and further damages in the event of default shall remain unaffected.
(4) Offsetting against counterclaims of the client or the retention of payments due to such claims is only permitted if the counterclaims are undisputed or have been legally established.
(5) The Seller shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, it becomes aware of circumstances which are likely to significantly reduce the Client’s creditworthiness and which jeopardize the payment of the Seller’s outstanding claims by the Client from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).
§ 4 Delivery and delivery time
(1) Deliveries are ex works.
(2) Deadlines and dates for deliveries and services promised by the Seller are always only approximate, unless a fixed deadline or a fixed date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarding agent, carrier or other third party commissioned with transportation.
(3) The Seller may – without prejudice to its rights arising from default on the part of the Client – demand from the Client an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which the Client fails to meet its contractual obligations to the Seller.
(4) The Seller shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. disruptions of operations of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which the Seller is not responsible. If such events make delivery or performance significantly more difficult or impossible for the Seller and the hindrance is not only of a temporary nature, the Seller shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to the seller.
(5) The Seller shall only be entitled to make partial deliveries if
- the partial delivery can be used by the client for the contractually intended purpose,
- the delivery of the remaining ordered goods is ensured and
- the client does not incur any significant additional work or costs as a result (unless the seller agrees to bear these costs).
(6) If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for him, for whatever reason, the Seller’s liability for damages shall be limited in accordance with § 8 of these General Terms and Conditions of Sale.
§ 5 Dispatch, packaging, transfer of risk, acceptance
(1) The shipping method and packaging are subject to the dutiful discretion of the seller.
(2) The risk shall pass to the Customer at the latest when the delivery item is handed over (whereby the start of the loading process is decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or if the Seller has taken on other services (e.g. dispatch or installation).
If dispatch or handover is delayed due to circumstances caused by the Client, the risk shall pass to the Client from the day on which the delivery item is ready for dispatch and the Seller has notified the Client of this.
(3) Storage costs after the transfer of risk shall be borne by the Client. In the case of storage by the Seller, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per week elapsed. The assertion and proof of further or lower storage costs shall remain reserved.
(4) The consignment shall only be insured by the Seller against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Client and at the Client’s expense.
(5) Insofar as acceptance is to take place, the purchased item shall be deemed accepted if
- the delivery and, if the seller also owes the installation, the installation has been completed,
- the Seller has informed the Client of this with reference to the fiction of acceptance in accordance with this § 5 (5) and has requested acceptance,
- twelve working days have passed since delivery or installation or the client has started using the purchased item (e.g. has put the delivered system into operation) and in this case six working days have passed since delivery or installation and
- the customer has failed to accept the goods within this period for a reason other than a defect notified to the seller which makes the use of the purchased item impossible or significantly impairs it.
§ 6 Warranty, material defects, notice of defects
(1) The warranty period shall be one year from delivery or, if acceptance is required, from acceptance. This period shall not apply to claims for damages by the Client arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by the Seller or its vicarious agents, which shall become time-barred in accordance with the statutory provisions.
(2) The delivered items must be carefully inspected immediately after delivery to the customer or to the third party designated by the customer. With regard to obvious defects or other defects that would have been recognizable during an immediate, careful inspection, they shall be deemed to have been approved by the Buyer if the Seller does not receive a written notice of defects within seven working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the Buyer if the notice of defects is not received by the Seller within seven working days of the time at which the defect became apparent; however, if the defect was already recognizable to the Customer at an earlier time under normal use, this earlier time shall be decisive for the start of the period for giving notice of defects. At the Seller’s request, a rejected delivery item shall be returned to the Seller carriage paid. In the event of a justified notice of defects, the Seller shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
(3) In the event of material defects in the delivered items, the Seller shall initially be obliged and entitled to rectify the defect or make a replacement delivery at its discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the customer may withdraw from the contract or reduce the purchase price appropriately.
(4) If a defect is due to the fault of the seller, the client can demand compensation under the conditions specified in § 8.
(5) In the event of defects in components from other manufacturers which the Seller cannot remedy for licensing or factual reasons, the Seller shall, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the Client or assign them to the Client. Warranty claims against the Seller for such defects shall only exist under the other conditions and in accordance with these General Terms and Conditions of Sale if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency. For the duration of the legal dispute, the limitation period for the Client’s relevant warranty claims against the Seller shall be suspended.
(6) The warranty shall not apply if the Client modifies the delivery item or has it modified by a third party without the Seller’s consent and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the Client shall bear the additional costs of remedying the defect resulting from the modification.
(7) Any delivery of used items agreed with the client in individual cases shall be made to the exclusion of any warranty for material defects.
§ 7 Property rights
(1) The Seller warrants in accordance with this § 7 that the delivery item is free from industrial property rights or copyrights of third parties. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it due to the infringement of such rights.
(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, the Seller shall, at its discretion and at its expense, modify or replace the delivery item in such a way that the rights of third parties are no longer infringed, but the delivery item continues to fulfill the contractually agreed functions, or procure the right of use for the Client by concluding a license agreement. If the seller does not succeed in doing so within a reasonable period of time, the client is entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages on the part of the Client are subject to the limitations of § 8 of these General Terms and Conditions of Sale.
(3) In the event of infringements of rights by products of other manufacturers supplied by the Seller, the Seller shall, at its discretion, assert its claims against the manufacturers and upstream suppliers for the account of the Client or assign them to the Client. In such cases, claims against the Seller shall only exist in accordance with this § 7 if the judicial enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or is futile, for example due to insolvency.
§ 8 Liability for damages due to fault
(1) The Seller’s liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with this § 8 insofar as fault is involved.
(2) The Seller shall not be liable in the event of simple negligence on the part of its bodies, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the delivery item on time, its freedom from defects of title and such material defects that impair its functionality or usability more than insignificantly, as well as obligations to provide advice, protection and care that are intended to enable the customer to use the delivery item in accordance with the contract or to protect the life and limb of the customer’s personnel or to protect the customer’s property from considerable
damage.
(3) Insofar as the seller is liable for damages in accordance with § 8 (2), this liability is limited to damages which the seller foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which he should have foreseen if he had exercised due care. Indirect damage and consequential damage resulting from defects in the delivery item shall only be eligible for compensation if such damage is typically to be expected when the delivery item is used as intended.
(4) In the event of liability for simple negligence, the Seller’s obligation to pay compensation for damage to property and any further financial losses resulting therefrom shall be limited to an amount of EUR 5,000,000 (in words: five million) per claim (corresponding to the current sum insured under its product liability insurance or liability insurance), even if this involves a breach of material contractual obligations.
(5) The above exclusions and limitations of liability apply to the same extent
in favor of the organs, legal representatives, employees and other vicarious agents of the seller.
(6) Insofar as the Seller provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by the Seller, this is done free of charge and to the exclusion of any liability.
(7) The limitations of this § 8 shall not apply to the Seller’s liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
§ 9 Retention of title
(1) The retention of title agreed below serves to secure all existing current and future claims of the Seller against the Buyer arising from the supply relationship existing between the contracting parties for components of supporting structures (frame systems) and electrical installation materials (including balance claims from a current account relationship limited to this supply relationship).
(2) The goods delivered by the Seller to the Buyer shall remain the property of the Seller until all secured claims have been paid in full. The goods and the goods covered by the retention of title which take their place in accordance with the following provisions are hereinafter referred to as “goods subject to retention of title”.
(3) The Buyer shall store the reserved goods free of charge for the Seller.
(4) The Buyer shall be entitled to process and sell the goods subject to retention of title in the ordinary course of business until the event of realization (paragraph 9) occurs. Pledges and transfers by way of security are not permitted.
(5) If the reserved goods are processed by the Buyer, it is agreed that the processing is carried out in the name and for the account of the Seller as manufacturer and that the Seller directly acquires ownership or – if the processing is carried out using materials from several owners or the value of the processed item is higher than the value of the reserved goods – co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur for the seller, the buyer hereby transfers his future ownership or – in the above-mentioned ratio – co-ownership of the newly created item to the seller as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, the Seller shall transfer to the Buyer the co-ownership of the uniform item in the proportion specified in sentence 1, insofar as the main item belongs to the Seller.
(6) In the event of the resale of the goods subject to retention of title, the Buyer hereby assigns to the Seller by way of security the resulting claim against the purchaser – in the case of co-ownership of the Seller in the goods subject to retention of title in proportion to the co-ownership share. The same applies to other claims that take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. The seller revocably authorizes the buyer to collect the claims assigned to the seller in his own name. The seller may only revoke this direct debit authorization in the event of liquidation.
(7) If third parties seize the reserved goods, in particular by attachment, the Buyer shall immediately inform them of the Seller’s ownership and inform the Seller thereof in order to enable the Seller to enforce its ownership rights. If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable to the Seller.
(8) The Seller shall release the goods subject to retention of title and the items or claims taking their place if their value exceeds the amount of the secured claims by more than 50%. The selection of the items to be released thereafter shall lie with the Seller.
(9) If the Seller withdraws from the contract in the event of breach of contract by the Buyer – in particular default of payment – (enforcement event), the Seller shall be entitled to demand the return of the reserved goods.
§ 10 Place of jurisdiction, place of performance
(1) If the Client is a merchant, a legal entity under public law or a special fund under public law or if it has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the Seller and the Client shall be Hamburg. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(2) The place of performance for all obligations arising from the contractual relationship is Hamburg, unless otherwise agreed. If the Seller is also responsible for installation, the place of performance shall be the place where the installation is to be carried out.
§ 11 Final provisions
(2) The relationship between the Seller and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) shall not apply.
(3) Insofar as the contract or these General Terms and Conditions of Sale contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Sale if they had been aware of the loophole.
Note:
The Client acknowledges that the Seller stores data from the contractual relationship in accordance with Section 28 of the German Federal Data Protection Act for the purpose of data processing and reserves the right to transfer the data to third parties (e.g. insurance companies) to the extent necessary for the fulfillment of the contract.
Bad Krozingen, 12.02.2018
