Sales Conditions
§ 1 Scope of application, Form
(1) These General Conditions of Sale (GCS) apply to all business relationships with our customers (“buyer”). The GCS only apply if the buyer is a professional ( § 14 BGB), a legal entity under public law or a special fund under public law.
(2) The GCS apply in particular to contracts for the sale and/or delivery of movable goods (“goods”), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers ( §§ 433 , 650 BGB). Unless otherwise agreed, the GCS apply as a framework agreement in the version valid at the time of the buyer’s order or in any case in the version last notified to him in text form (§ 126b BGB). The GCS shall also apply for similar future contracts without our having to refer to them again in each individual case.
(3) Our GCS shall apply exclusively. Deviating, conflicting or supplementary General Conditions of the buyer shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in any case, for example even if the buyer refers to its GCS within the scope of the order and we do not expressly object to this.
(4) Individual agreements (e.g. framework supply agreements, quality assurance agreements) and details in our order confirmation take precedence over the GCS. In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms® published by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.
(5) Legally relevant declarations and notifications by the buyer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction claims) must be made in writing. Written form within the meaning of these GTC includes written and text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in the event of doubts about the legitimacy of the declarant, shall remain unaffected.
(6) References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GCS.
§ 2 Conclusion of contract
(1) Our offers can be changed and are non- binding. This shall also apply if we have provided the buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve property rights and copyrights.
(2) The order of the goods by the buyer shall be deemed as a binding offer of contract and as a firm commitment to take the goods specified in the order. Orders shall be sent in writing specifying requested shipping dates. Unless otherwise stated in the order, we shall be entitled to accept this offer of contract within 14 days of its receipt by us.
(3) Acceptance is to be declared to the buyer in writing by order confirmation.
§ 3 Delivery period and delay in delivery
(1) The delivery period shall be agreed individually or stated by us upon acceptance of the order.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we will inform the buyer of this immediately and at the same time inform him of the expected new delivery deadline. If the service is also within the new delivery period not available, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the buyer. Non- availability of the service shall be deemed to exist, for example, in the event of late delivery by our supplier, if we have in the event of other disruptions in the supply chain, for example due
to force majeure, or if we are otherwise not obliged to delivery in the individual case.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the buyer is required in written. If we are in default of delivery, the buyer can only claim damages if the default is self-inflicted (intent or gross negligence) and only after a period of 60 days.
(4) The rights of the buyer pursuant to § 8 of these GCS and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
(1) Unless otherwise expressly agreed by the Parties in writing, delivery shall be carried out according to the EXW Incoterm Clause at our premises in Henkestrasse 91, 91052, Erlangen, Germany, which is also the place of performance for the delivery and any subsequent performance. We are obliged neither to load the goods on any collecting vehicle, nor to clear the goods for export, where such clearance is applicable. At the buyer’s request and expense, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance).
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental destruction and accidental deterioration of the goods as well as the risk of delay shall pass to the buyer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply accordingly to an agreed acceptance. The handover or acceptance shall be deemed equivalent if the buyer is in default of acceptance.
(3) If the buyer is in default of acceptance, fails to cooperate or delays our delivery for other reasons for which the buyer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs). For this purpose, we shall charge a lump-sum compensation of [•]. EUR per calendar day, starting with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for the pick-up.
(4) The proof of higher damages and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory VAT.
(2) In the case of a sale by delivery to a place other than the place of performance (§ 4 para. 1), the buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested. If we do not invoice the transport costs actually incurred in the individual case, a flat rate for transport costs (excluding transport insurance) of 150 EUR shall be deemed agreed. Any customs duties, fees, taxes and other public charges shall be borne by the buyer. (3) The purchase price shall be due and payable within 14 days of invoicing and delivery or acceptance of the goods. However, we are entitled at any time, also within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
For orders with a goods value of EUR 50,000.00 (net), a deposit of 50% of the ordered goods (net) is required. The remaining purchase price is due 14 days after delivery of the goods or upon acceptance.
(4) Upon expiry of the aforementioned payment deadline, the buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to assert further damage arisen during the default. With respect to merchants [Kaufleute] ( §1 HGB), our claim to the commercial interest rate (§ 353 HGB) remains unaffected.
(5) The buyer shall be entitled to set-off or retention only insofar as his claim has been settled upon res judicata or is undisputed. In the event of defects in the delivery, the counter rights of the buyer shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these GCS.
(6) If it becomes apparent after the conclusion of the contract (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardised by the buyer’s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible items (custom-made products), we may declare withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.
§ 6 Retention of title
(1) We retain title to the goods sold until full payment of all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The buyer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the goods belonging to us.
(3) In the event of conduct by the buyer in breach of contract, in particular in the event of non- payment of the purchase price due, we shall be entitled to terminate from the contract in accordance with the statutory provisions or/and to demand surrender of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of termination; we are rather entitled to demand only the return of the goods and to reserve the right of termination. If the buyer does not pay the purchase price due, we may assert these rights, as long as setting such a deadline is dispensable according to the statutory provisions, only if we have previously set the buyer a reasonable deadline for payment without success .
(4) The buyer is authorised, with the exception of the right to revoke pursuant to lit. (c) below, to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply additionally:
a) the retention of title extends to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we are deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title;
b) the buyer hereby assigns to us as security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the buyer mentioned in paragraph 2 shall also apply with regard to the assigned claims;
c) the buyer remains authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the buyer meets his payment obligations towards us, there is no deficiency in his ability to pay. If this is the case, however, we may demand that the buyer informs us 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. Furthermore, in this case we are entitled to assert the retention of title on the goods pursuant to para. 3, as long as economically reasonable, and revoke the buyer’s authority to further sell and process the goods subject to retention of title;
d) if the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the buyer’s request.
§ 7 Claims for defects of the buyer
(1) The statutory provisions shall apply to the rights of the buyer in the event of defects of title and material defects (including incorrect and short delivery as well as improper assembly/installation or defective instructions), unless otherwise stipulated below. In all cases, the special statutory provisions on reimbursement of expenses in the event of final delivery of the newly manufactured goods to a consumer (supplier’s recourse pursuant to §§ 478 ,445a,445bor§§445c,327para.5,327u BGB) shall remain unaffected, unless an equivalent compensation has been agreed, e.g. in the frame of a quality assurance agreement
(2) The basis of our liability for defects is above all the agreement reached on the quality and the presumed use of the goods (including accessories and instructions). All product descriptions and manufacturer’s specifications which are the subject of the individual contract at the time of the conclusion of the contract shall be deemed to be an agreement on quality in this sense. Insofar as the quality was not agreed, it shall be assessed in accordance with the statutory regulation whether a defect exists or not ( § 434 para. 3 BGB). Public statements made by the manufacturer or on its behalf, in particular in advertising or on the label of the goods, take precedence over statements made by other third parties.
(3) In the case of goods with digital elements or other digital content, we only owe provision and, if applicable, updating of the digital content insofar as this expressly results from a quality agreement in accordance with para. 2. In this respect, we do not assume any liability for public statements made by the manufacturer and other third parties.
(4) As a matter of principle, we shall not be liable for defects of which the buyer is aware at the time of conclusion of the contract or is not aware due to gross negligence ( § 442 BGB). Furthermore, the buyer’s claims for defects presuppose that he has fulfilled his statutory duties of examination and notification ( §§ 377 , 381 HGB). In the case of incorporating materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent upon delivery, inspection or at any later time, we must be notified thereof in writing without undue delay. In any case, obvious defects must be notified to us in writing within one working days of delivery, and defects which are not apparent on inspection must be notified to us within the same period of time from the time of discovery. If the buyer fails to carry out the proper inspection and/or notify us of the defect, our liability for the defect which is not notified or not notified in good time or not properly notified shall be excluded in accordance with the statutory provisions. In the case of goods intended for incorporation, attachment or installation, this shall also apply if the defect only became apparent after the corresponding process as a result of the breach of one of these obligations; in this case, in particular, there shall be no claims by the buyer for reimbursement of corresponding costs (“removal and incorporation costs”).
(5) If the delivered item is defective, the buyer may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement). If the type of subsequent performance chosen by the buyer is unreasonable in the individual case, we may reject it. The statutory conditions on the refusal subsequent performance remain unaffected.
(6) We are obliged to carry out the subsequent performance upon the buyer‘s paying the purchase price due.
(7) The buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the buyer shall return the defective item to us at our request in accordance with the statutory provisions; however, the buyer shall not have a claim for return. Subsequent performance shall not include the dismantling, removal or disassembly of the defective item or the installation, attachment or assembly of a defect-free item if we were not originally obliged to perform these services; claims of the buyer for reimbursement of corresponding costs (“dismantling and assembly costs”) shall remain unaffected.
(8) We shall reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, dismantling and assembly costs, in accordance with the statutory provisions and these GCS if there is actually a defect, if justified.
(9) In case of danger for the operational safety which is likely to result in a disproportionate damage, the buyer has to inform us immediately. The buyer is entitled upon information to remedy the defect himself and to present a request of reimbursement of the expenses objectively necessary for this purpose.. The right of self- execution does not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
(10) If a reasonable period to be set by the buyer for subsequent performance has expired unsuccessfully, the buyer may immediately terminate the purchase contract or reduce the purchase price in accordance with the statutory provisions, as long as a period to be set is not indispensable under the statutory provisions. In the case of an insignificant defect, however, there is no right to terminate.
(11) Claims of the buyer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with § 8 and are otherwise excluded.
§ 8 Other liability grounds
(1) Insofar as nothing to the contrary arises from these GCS including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
(2) We shall be liable for damages – irrespective of the legal grounds – within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. diligentia quam in suis; insignificant breach of duty), in the following cases:
a) for damages resulting from injury to life, body or health,
b) for damages arising from the breach of a material contractual obligation (obligation whose fulfilment is a prerequisite for the proper performance of the contract and on whose compliance the contractual partner regularly relies and may reasonably rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from para. 2 shall also apply to third parties as well as to breaches of duty by persons (also in their favour) whose fault we are responsible for according to statutory provisions. They do not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the buyer under the German Product Liability Act [Produkthaftungsgesetz].
(4) Due to a breach of duty which does not consist of a defect, the buyer may only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 650 , 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
(1) Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall begin with acceptance. (2) Other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444 , 445b BGB) shall remain unaffected.
(3) The above limitation periods of the law on sales also apply to contractual and non- contractual claims for damages of the buyer based on a defect of the goods, unless the application of the regular statutory limitation period ( §§ 195 , 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages by the buyer pursuant to § 8 para.2p.1andp.2(a)aswellaspursuanttothe Product Liability Act [Produkthaftungsgesetz] shall become time-barred exclusively in accordance with the statutory limitation periods.
§ 10 Choice of law and place of jurisdiction
(1) The substantive law of the Federal Republic of Germany shall apply to the existence, the interpretation, and the fulfillment of these GCS and the contractual relationship between us and the buyer with the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) For all disputes arising directly or indirectly from the contractual relationship the exclusive – also international – place of jurisdiction shall be our registered office in Erlangen, if the buyer is a merchant within the meaning of the German Commercial Code [Handelsgesetzbuch], a legal entity under public law or a special fund under public law. . The same shall apply if the buyer is a professional within the meaning of § 14 BGB (German Civil Code). However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GCS or a individual agreement entered into after the claim arose, or at the general place of jurisdiction of the buyer.