As of April 2019
1.1 The following terms and conditions (“TaC”) of the seller (“we”) apply to all contracts for the supply of movable goods and other parts (“goods”) concluded between us and the purchaser. These TaC shall only apply when the purchasing entrepreneur (para. 14 German Civil Code) is a legal entity under public law or a special fund under public law.
1.2 In particular, the TaC apply to contracts pertaining to the sale and delivery of goods without regards to whether we produce the goods ourselves or buy them from suppliers. The TaC shall also apply to future contracts pertaining to the sale and delivery of goods with the same purchaser as a framework agreement, without us having to make reference to them each time.
1.3 Our TaC apply exclusively. Differing, conflicting or additional terms and conditions on part of the purchaser only become part of the contract if, and to the extent, that their validity is expressly agreed to by us in written form. This approval requirement applies in all cases, even if, for example, we unreservedly carry out the delivery despite being aware of and familiar with the purchaser’s terms and conditions.
1.4 In any case, agreements made with the purchaser in individual cases (including subsidiary agreements, additions and amendments) take precedence over these TaC. A written contract or our written confirmation is authoritative for the content of such agreements. Legally relevant declarations and notices the purchaser shall submit to us upon conclusion of the contract (such as deadlines, reminders, declaration of resignation) require the written form to be effective.
2. Offer and conclusion of contract
2.1 We may accept an order by the purchaser that ought to be qualified as an offer for conclusion of a purchase contract either by sending an order confirmation within two weeks or by sending the ordered goods within the same time period.
2.2 Our offers are non-binding, unless we expressly state otherwise, i.e. designate them as such.
3.1 Unless otherwise agreed in individual cases, the prices that are current at the time of the conclusion of the contract, namely ex stock, plus sales tax, shall apply.
3.2 The purchase price and prices for additional services are payable upon delivery of the object of purchase and delivery or transmission of the invoice. Within 14 days after the due date, the purchaser shall be deemed to be in default.
3.3 If, upon conclusion of the contract, it becomes apparent that our claim to the purchase price is at risk due to lack of capacity on part of the purchaser (e.g. as a result of petition for initiating insolvency proceedings), we are entitled to demand an advance payment for the delivery and sale of the goods from the purchaser.
3.3 The purchaser may only charge up against our claims if the purchaser’s counterclaim is undisputed, or if in possession of a legal title; he may only assert a right of retention provided it is based on claims arising from the respective purchase contract.
4. Delivery and delivery delay
4.1 Delivery dates and delivery deadlines, which may be agreed upon bindingly or non-bindingly, are to be specified at the time of acceptance of the order. Delivery periods begin with conclusion of the contract.
4.2 The purchaser may request us to deliver ten (10) days after a non-binding delivery date or non-binding delivery deadline has been exceeded. Receipt of the request causes us to be in default. If the purchaser has a right to compensation for damages resulting from a delay, it shall be limited to no more than five (5) percent of the agreed purchase price, provided mild negligence on part of the seller.
4.3 If the purchaser also wishes to withdraw from the contract and/or opts to claim for damages instead of receiving performance, he is obligated to provide us a reasonable delivery deadline upon expiry of the ten-day period under the terms of section 3.2 of these TaC. If the purchaser has the right to claim for damages instead of receiving performance, the claim is limited to a maximum of 25% of the agreed purchase price in case of mild negligence. If we are unable to deliver due to happenstance while in default, we are liable under the limits of liability agreed upon above. Liability is excluded if the damage would have also occurred in case of timely delivery.
4.4 If a binding delivery date or a binding delivery deadline is exceeded, we shall already be considered in default the moment the delivery date or delivery deadline is exceeded.
4.5 We reserve the right to make a partial delivery, provided this appears to be advantageous for fast processing and the partial delivery is not exceptionally unreasonable for the purchaser. The purchaser will not be charged for additional costs incurred by partial deliveries.
4.6 Force majeure or interruptions of operations on our part or part of our suppliers, which temporarily prevent us from delivering the purchased item on the agreed date or within the agreed delivery period without own fault, extend the dates and deadlines specified in clauses 4.1 to 4.5 by the duration of the delay caused by these circumstances. In the event that such interruptions result in a service delay of more than four (4) months, the purchaser may withdraw from the contract. Other rights to withdraw remain unaffected.
4.7 Design or form changes, differences in shade as well as changes of scope of delivery on the part of the manufacturer remain reserved during the delivery period, provided the changes are bearable for the purchaser. Given we or the manufacturer make use of reference codes or numbers to describe the order or ordered goods, no rights can be derived solely from this.
4.8 The limitation of liability of this clause does not apply to cases of clauses 8.3 to 8.5.
5. Delivery, transfer of risk, acceptance, default of acceptance
5.1 Delivery takes place ex warehouse, which is also the place of performance. At the request and expense of the purchaser, goods can be shipped to another destination (sale by dispatch). Unless otherwise agreed, we have the right to choose the method of shipment (in particular transport company, shipping route, packaging).
5.2 The risk of accidental loss and accidental deterioration of the goods passes to the purchaser no later than at the time of handover to the purchaser. In case of sale by dispatch, the risk of accidental loss and accidental deterioration of the goods and the risk of delay of delivery is already transferred to the forwarding agent, the carrier or other person or entity designated to carry out the shipment at the time of handover to them. As far as acceptance is agreed upon, it is decisive for the transfer of risk. The statutory provisions of the law on contracts for services shall apply analogously in other respects to an agreed acceptance. Default of acceptance by the Customer shall be equivalent to delivery or acceptance.
5.3 The purchaser undertakes to accept the object of sale within eight (8) days of receipt of notification that the object of sale is ready. Unless expressly otherwise agreed upon, the purchaser shall accept goods on call within ten (10) weeks of conclusion of the contract. If the purchaser does not retrieve goods on time, he falls into default of acceptance upon a further written notice with a grace period of two (2) weeks.
5.4 In the case of non-acceptance, the seller may exercise his legal rights. If we demand compensation for damages, they will amount to ten percent (10%) of the purchase price. The compensation shall be set lower or higher if we prove a higher damage or the purchaser proves that the loss was lower or no damage was incurred.
6. Retention of title
6.1 The goods remain our property until settlement of the claim that we are entitled to on the basis of the purchase contract.
6.2 If the purchaser defaults on payment, we may withdraw from the contract. If we are furthermore entitled to claim damages instead of performance and take the object of sale back, both the purchaser and us agree, that we credit the normal sales value of the goods at the time of the withdrawal. The buyer bears all costs of repossession and recovery of the goods. Without proof, the recovery costs shall amount to five percent (5%) of the ordinary sales value. Clause 5.4, 2nd sentence applies accordingly.
6.3 The goods subject to reservation of ownership may neither be pledged to third parties nor transferred as security until full payment of the secured claims. The buyer must immediately inform us, in writing, if and when third parties make requests for the goods belonging to us.
6.4 The buyer is entitled to resell or process the goods subject to reservation of ownership in the ordinary course of business. In this case, the following provisions shall additionally apply.
(a) The reservation of ownership extends to products resulting from processing, mixing or combining of our products, to their full value, whereat we are deemed the manufacturer. In case third parties retain ownership upon processing, mixing or combining with their goods, we shall acquire co-ownership in the ratio of the invoice value of the processed, mixed or combined goods. In addition, the same applies to the resulting product as does to the goods delivered under reservation of ownership.
(b) As a collateral, the purchaser already transfers to us claims against third parties resulting from resale of the goods or products, in full amount or the amount of our possible co-ownership share, in accordance with the preceding paragraph. We accept the transfer. The purchaser’s obligations mentioned in section 6.3 of these TaC shall also apply in respect of transferred claims.
(c) In addition to us, the purchaser also remains authorized to collect the claim. We commit ourselves to abstain from collecting the claim, provided the purchaser fulfills his payment obligations to us, is not in default of payment, does not petition for initiation of insolvency proceedings and no other deficiency in his ability of performance exists. However, should this be the case, we can require that the buyer reveals the transferred claims and their debtors to us, provides all the necessary information, delivers corresponding documents and notifies the debtors (third parties) of the transfer.
(d) If the realizable value of the securities exceeds our claims by more than ten percent (10%), we shall release securities at our own discretion.
7. Warranty rights
7.1 The statutory provisions apply to the buyer’s rights for material and legal defects (including misinformation and short delivery as well as improper installation or inadequate assembly instructions), unless otherwise provided in the following. The statutory special regulations for final delivery of the goods to a consumer remain unaffected (supplier regress according to subpara. 478, 479 German Civil Code).
7.2 For new goods, claims of the purchaser due to material defects become time-barred after one (1) year of risk transfer of the goods. For used parts and accessories, claims based on material defects become time-barred within six (6) months of risk transfer of the goods.
7.3 The limitation period in aforementioned section 7.2 of these TaC does not apply to compensation claims from liability for material defects, including those due to violation of an obligation of subsequent fulfillment. For those claims – as for all other claims for damages – the regulations in section 5 of the TaC as well as the statutory limitation periods apply.
7.4 Basis of our liability for defects is especially the agreement on the condition of the goods. Considered as agreement on the condition of the goods are the so-called product descriptions, which were provided to the buyer prior to order placement or included in the contract in the same way as these conditions of sale.
7.5 If the condition was not agreed upon, the presence of a defect shall be assessed according to the law.
7.6 Claims due to material defects do not exist if the defect or damage is due to natural wear and tear or the buyer did not comply with his statutory examination and complaint obligations (subpara. 377, 381 German Commercial Code). If a defect is detected during inspection or later, we shall be informed thereof immediately and in writing. The notification is considered without delay if it occurs within one (1) week, whereat timely dispatch of the notification suffices to comply with the deadline. Regardless of this reprimand and inspection duty, the purchaser shall make written notification of any obvious defects (including incorrect and short delivery) within two (2) weeks of delivery, whereat timely dispatch of the notification sufficies to comply with the deadline. If the purchaser neglects proper inspection or notification of defects, we shall not be liable for the non-disclosed defect. Our liability for defects is also excluded if the purchased item has been improperly treated or overused, e. g. in motor sport competitions that it was not designed for, or if the sale object was previously improperly repaired by a company, of which it was apparent to the purchaser that it is not recognized by the manufacturer for this purpose, or parts were installed in the sales object, the use of which the manufacturer has not approved, or the sales object or parts thereof (e. g. software) have been altered in a way not approved by the manufacturer, or the buyer failed to observe the rules governing the handling, maintenance and care of the goods (e. g. operating instructions).
7.7 If the supplied goods are defective, we can first decide whether we provide subsequent fulfillment by rectification of the defect (subsequent improvement) or by delivery of faultless goods (replacement delivery). Our right to refuse the chosen type of remedy under the statutory conditions remains unaffected.
7.8 We are entitled to make the due subsequent performance dependent of the purchaser paying the due purchase price. The buyer is, however, entitled to withhold a reasonable portion of the purchase price that is in relation to the defect.
7.9 The purchaser has to provide us the time and opportunity required for subsequent performance, in particular to hand over the goods in question for inspection purposes. In case of a replacement delivery, the purchaser shall return the defective goods to us according to the legal regulations.
7.10 If a defect actually exists, we shall cover the expenses for the purpose of examination and subsequent performance, in particular transport costs, road costs, labor costs and material costs. Yet, if a request for the rectification of a defect by the purchaser is determined to be unjustified, we can demand the purchaser to reimburse the costs that resulted thereof.
7.11 If subsequent performance has failed or a period appropriate for performance that is to be set by the buyer has expired unsuccessfully or is dispensable under the statutory provisions, the purchaser can withdraw from the purchase contract or reduce the purchase price. In case of a significant deficiency, there is no right of withdrawal.
7.12 The purchaser’s claims for damages or compensation for futile expenses are only valid according to section 8 of these TaC and are otherwise excluded.
7.13 Further claims remain unaffected, unless we are specifically liable due to legal regulations or something else has been agreed upon in an individual contract, in particular in case of agreement on a contractual warranty.
7.14 Our liability due to legal defects arises from legislation.
8.1 If, under applicable legislation, we’re obliged to compensate damages caused by mild negligence, we accept liability to a limited extent:
8.2 We are only liable for infringement of any essential duties under the contract, such as those imposed by the purchase contract according to its content and purpose, or the fulfillment of which makes the proper execution of the contract possible and compliance with which the buyer regularly trusts in and may rely on (cardinal obligations). This liability is limited to typical damage foreseeable upon conclusion of contract. Provided the damage is covered by an insurance (excluding fixed sum insurance) concluded by the purchaser, we are only liable for any associated disadvantages suffered by the purchaser, such as higher insurance premiums or interest disadvantages until claims settlement by the insurance company.
8.3 Regardless of our being at fault, our possible liability for fraudulent concealment of the defect, from transfer of a warranty or a procurement risk and under the product liability law remains unaffected.
8.4 The personal liability of our legal representatives, vicarious agents and employees for losses caused by slight negligence on their part is excluded. The liability limitation that applies to damage resulting from gross negligence shall apply accordingly to said individuals, except legal representatives and executive employees.
8.5 The limitations of liability of this section shall not apply in case of injury to life, body or health, or in case of wilful action.
9. Applicable law and place of jurisdiction
9.1 For these TaC and all legal relationships between us and the purchaser, the law of the Federal Republic of Germany applies under exclusion of all international and supranational (contractual) legal systems, especially the Uniform Law on the International Sale of Goods (CISG). The pre-requisites and effects of the reservation of ownership according to clause 5 of this TaC are on the other hand subject to the law of the respective storage location of the object, insofar as choice of German law as applicable law is then inadmissible or invalid.
9.2 The sole – also International – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered office in Berlin. However, we are also entitled to bring an action against the purchaser at his general place of jurisdiction.