General Terms and Conditions of Sale (GTC)                    

1st Scope of application

1.1 These General Terms and Conditions of Sale (GTCs) apply to all our business relationships with our customers (“hereinafter referred to as the “buyer”). The General Terms and Conditions of Sale shall only apply if the Buyer is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law within the meaning of Section 310 (1) BGB.

1.2 Our General Terms and Conditions of Sale shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement of consent shall also apply if the buyer refers to their General Terms and Conditions in the context of the order and we have not expressly objected to them.

1.3 These General Terms and Conditions of Sale apply to contracts for the sale and/or delivery of movable goods (“goods”). It is irrelevant whether we manufacture the goods ourselves or purchase them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, the General Terms and Conditions of Sale in force at the time of the buyer’s order or in the version last supplied to the buyer in writing shall also apply as the framework agreement for similar future contracts, without us as the seller having to refer to them again on a case-by-case basis.

1.4 Individual agreements made with the buyer in individual cases (including collateral agreements, supplements and amendments) and information in our order confirmation shall take precedence over these General Terms and Conditions of Sale. Subject to evidence to the contrary, a written contract or written confirmation on our part shall be decisive for the content of such agreements.

1.5 Legally relevant declarations and notifications by the buyer with regard to the contract (e.g. notifications of defects, setting of deadlines, cancellations or reductions) must be made in writing, i.e. in written and text form (e.g. letter, email, fax). Further statutory formal requirements and other evidence, in particular in the event of doubts about the legitimacy of the declaring party, remain unaffected.

1.6 If references are made to the validity of statutory provisions, it should be noted that these are for clarification purposes only. The statutory provisions shall apply – even if no corresponding clarification has been made – to the extent that they are not amended or excluded by the General Terms and Conditions of Sale.

2. Offer and conclusion of the contract

2.1 Our offers are subject to change and non-binding. This shall also apply if we have provided the buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, costings, references to DIN standards) and other product descriptions or documents (including in electronic form). We reserve ownership rights and copyrights to all documents provided to the buyer in connection with the placing of the order. These documents may not be made accessible to third parties unless we give the buyer our express written consent to do so.

2.2 The ordering of goods by the buyer is a non-binding contractual offer in accordance with § 145 BGB. In the event that nothing to the contrary results from the order, we shall be entitled to accept this contractual offer within two weeks of receiving it.

2.3 Our acceptance of the buyer’s contractual offer can be declared either in writing (e.g. by an order confirmation) or by delivering the goods to the buyer. In the event that we as the seller do not accept the buyer’s offer within the period specified in section 2.2, any documents sent to the buyer must be returned to us immediately.

3. Prices and payment terms

3.1 Unless otherwise agreed in writing in individual cases, our current prices at the time of conclusion of the contract shall apply ex warehouse, including packaging, plus statutory VAT. Unless a fixed price was agreed, we reserve the right to make reasonable price changes due to changes in labour, material and distribution costs for deliveries, if these become effective at least 3 months after the contract was concluded.

3.2 In the case of a sales shipment, the buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the buyer. Any customs duties, fees, taxes and other public charges shall be borne by the buyer.

3.3 The purchase price must be paid exclusively into the account specified overleaf. Discounts may only be deducted by special written agreement.

3.4 Unless otherwise agreed, the purchase price shall be due and payable either within ten days of invoicing and delivery with a discount of three per cent or within thirty days of invoicing and delivery net net. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare any proviso to this effect with the order confirmation at the latest.

3.5 The buyer shall be in default if the above payment period expires. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate pursuant to Section 288 (2) BGB in the amount of eight percentage points above the respective base interest rate. We reserve the right to claim further damages for default. With respect to merchants, our claim to the commercial due date interest pursuant to Section 353 of the German Commercial Code (HGB) remains unaffected.

3.6 If it is foreseeable after conclusion of the contract that our claim to payment of the purchase price is jeopardised due to the buyer’s inability to pay (e.g. due to an application for the opening of insolvency proceedings), 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 (Section 321 BGB). In the case of contracts for which the manufacture of non-fungible items (customised products) is owed, we may declare our withdrawal immediately. Statutory provisions concerning the dispensability of setting a deadline shall remain unaffected.

4. Rights of retention

The buyer shall only be entitled to rights of set-off or retention in the event that their claim has been legally established or is undisputed and their counterclaim is based on the same contractual relationship. In the event that defects occur within the scope of the delivery, the buyer’s counter-rights, in particular in accordance with clause 8.6 sentence 2 of these General Terms and Conditions of Sale, shall remain unaffected.

5. Delivery period and delays

5.1 The delivery period shall be agreed individually or specified by us upon acceptance of the order. If this is not the case, the delivery period shall be approximately two weeks from conclusion of the contract.

5.2 In the event that we are unable to meet contractually agreed delivery deadlines for reasons for which we are not responsible, we must inform the buyer of this circumstance immediately and at the same time inform the buyer of the expected or new delivery deadline. If a delayed delivery cannot be made due to non-availability of the service even within the newly revised delivery period, we are entitled to withdraw from the contract in whole or in part; we must immediately reimburse any consideration already provided by the buyer (in the form of the purchase price payment). The non-availability of the service is given, for example, if our supplier has not delivered to us on time, if we have concluded a congruent hedging transaction, if there are other disruptions in the supply chain (e.g. due to force majeure) or if we are not obliged to ensure procurement in individual cases.

5.3 Whether we as the seller are in default of delivery shall be determined in accordance with the statutory provisions. However, the prerequisite for a delay in delivery by us as the seller is a reminder from the buyer.

5.4 The buyer’s rights pursuant to Section 9 of these General Terms and Conditions of Sale 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.

6. Delivery, transfer of risk, acceptance, default of acceptance

6.1 Delivery shall be ex warehouse. The warehouse is also the place of fulfilment for the delivery and the place for any subsequent fulfilment. In the event that the buyer wishes the goods to be sent to a different destination (sale to destination), the buyer shall bear the shipping costs. In the event that nothing has been contractually agreed, we are free to determine the type of shipping (packaging, dispatch route, transport company) ourselves.

Unless otherwise contractually agreed, we deliver ex works from an order value of EUR 200.00. Up to an order value of EUR 300.00, we charge a service fee of EUR 20.00. From an order value of EUR 600.00, delivery is free to addresses within Germany or free as far as the German border.

6.2 The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer when the goods are handed over to the buyer. In the case of a sale involving the carriage of goods, the risk of accidental loss of the goods, accidental deterioration of the goods and the risk of delay shall pass to the buyer upon delivery of the goods to the forwarding agent or carrier. In the event that acceptance of the goods is contractually agreed, this shall be decisive for the transfer of risk. Further statutory provisions of the law on contracts for work and labour remain unaffected. If the buyer is in default of acceptance, the transfer of risk shall remain the same.

6.3 In the event that the buyer is in default of acceptance or our delivery is delayed for other reasons for which the buyer is responsible, we shall have a claim against the buyer for compensation for the damage incurred, including additional expenses (e.g. storage costs). If this is the case, we shall charge the buyer a flat-rate compensation of EUR 6 per pallet space per calendar month (beginning with the delivery period or, if no delivery period is specified, with the notification that the goods are ready for dispatch). Statutory claims on our part (reimbursement of additional expenses, reasonable compensation, cancellation) and proof of higher damages remain unaffected.

6.4 Proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, cancellation) shall remain unaffected; however, the flat rate shall be offset against further monetary claims. The buyer likewise has the right to prove that we have suffered no or significantly lower damage than the flat rate.

7. Retention of title

7.1 We shall retain the title to the delivered goods until full payment of all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims).

7.2 The goods subject to retention of title may not be pledged to third parties or assigned as security until the secured claims have been paid in full. The buyer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties seize the goods belonging to us (e.g. seizures). Insofar as the third party is not in a position to reimburse us for the legal and extrajudicial costs of a claim in accordance with Section 771 of the Code of Civil Procedure (ZPO), the buyer shall be liable for the loss we incur.

7.3 In the event of a breach of contract by the buyer, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand to return goods does not simultaneously include a declaration of cancellation; rather, we are entitled only to demand the return of the goods and reserve the right to cancel the contract. If the buyer does not pay the purchase price due, we must have set the buyer a reasonable deadline for payment without success before asserting these rights. This shall only apply if such a deadline is not dispensable under the statutory provisions.

7.4 The buyer shall be authorised to resell and/or process the goods subject to retention of title in the ordinary course of business until revoked in accordance with clause 7.4.c. In this case, the following conditions also apply:

1. a) The products of our goods created by combining, mixing or processing are subject to retention of title at their full value, whereby we are deemed to be the manufacturer. In the event that third-party ownership rights continue to exist in the event of combining, mixing or processing with the goods of third parties, we shall acquire co-ownership in proportion to the invoice values of the combined, mixed or processed goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title. For security purposes, the buyer shall also assigns to us such claims against third parties which accrue to them through the combination of the goods subject to retention of title with a property. In this case, we accept the assignment of claims.

7. b) For security purposes, the buyer hereby assigns to us the claims against third parties arising from the resale of the goods or the product in the amount of the final invoice amount agreed with us (including VAT) in total or in the amount of our possible co-ownership share in accordance with clause 7.4.a. We accept this assignment. The buyer’s obligations set out in clause 7.2 shall also apply with regard to the assigned claims.

7. c) The buyer remains authorised to collect the claim in addition to us. As long as the buyer fulfils their payment obligations to us, there is no deficiency in the buyer’s ability to pay and we do not assert the retention of title by exercising a right in accordance with clause 7.3, we undertake not to collect the claim. If we exercise a right pursuant to Section 7.3, we may demand that the buyer disclose the assigned claims and their debtors and that the buyer provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In addition, we shall be entitled to revoke the buyer’s authorisation to resell and process the goods subject to retention of title.

1. d) In the event that 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.

7.5 The buyer is obliged to treat the purchased item with care as long as ownership has not yet been transferred to him. If maintenance and inspection work has to be carried out, the buyer must carry this out in good time at their own expense.

8. The buyer’s claims for defects

8.1 The statutory provisions shall apply to the rights of the buyer in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions), unless otherwise specified below. This shall not affect the statutory provisions on the sale of consumer goods (Section 474 ff. BGB) or the rights of the buyer arising from separately issued guarantees, in particular from the manufacturer.

8.2 Agreements that we have made with buyers regarding the quality and intended use of the goods (including accessories and instructions) regularly form the basis of our liability for defects under the warranty. A quality agreement includes all product descriptions and manufacturer’s specifications that are the subject of the individual contract or were made public by us (in particular in catalogues or on our Internet homepage) at the time the contract was concluded. In the event that no quality agreement has been made, it must be assessed in accordance with the provisions of Section 434 (3) BGB whether a defect exists. Against this background, it should be noted that public statements made by the manufacturer in the context of advertising or on the labelling of the goods take precedence over statements made by other third parties.

8.3 For goods with digital elements or other digital content, it should be noted that we are only obliged to provide and update the digital content insofar as this expressly results from a quality agreement in accordance with Section 8.2. We accept no liability for public statements made by the manufacturer or other third parties.

8.4 We shall not be liable for defects of which the buyer is aware at the time of conclusion of the contract or of which the buyer is not aware due to gross negligence in accordance with Section 442 BGB.

8.5 Claims for defects by the buyer presuppose that the buyer has met the obligations to inspect the goods and give notice of any defects (in accordance with Sections 377, 381 HGB). If the goods are building materials or other goods intended for installation or other further processing, an inspection must be carried out immediately before processing. We must be notified immediately in writing if a defect is discovered during delivery, inspection or at a later date. Obvious defects must be notified in writing within five working days from delivery and unrecognisable defects within the same period from discovery of the defects.
In the event that the buyer neglects or fails to fulfil their obligation to properly inspect the goods and/or report defects, we shall not be liable for defects which are not reported, not reported on time or not reported properly in accordance with the statutory provisions. If the goods were intended for fitting, mounting or installation, this shall also apply if the defect only became apparent after the corresponding processing as a result of non-compliance with or breach of one of these obligations. In this case, the buyer is not entitled to any claims for compensation for “installation and removal costs”.

8.6 If the delivered goods are defective, we as the seller shall be entitled to choose whether we provide subsequent fulfilment by remedying the defect (rectification) or by delivering a defect-free item (subsequent delivery). In the event that the type of subsequent fulfilment chosen by us is unreasonable for the buyer in the individual case, they may refuse it. However, we reserve the right to refuse subsequent fulfilment under the statutory conditions. In addition, we are entitled to make the subsequent fulfilment to be provided by us dependent on the buyer paying the purchase price due. However, the buyer is entitled to withhold a part of the purchase price that is reasonable in relation to the defect.

8.7 The buyer shall grant us the necessary time and opportunity to provide the subsequent fulfilment. In particular, the buyer shall hand over to us the item for which they have asserted a defect so that we can inspect it. In the event that we make a subsequent delivery of a defect-free item, the buyer must return the defective item to us in accordance with the statutory provisions. However, the buyer is not entitled to a claim for return.

8.8 Unless we are contractually obliged to do so, subsequent fulfilment shall not include the dismantling, removal or de-installation of the defective item or the installation, fitting or installation of a defect-free item. This shall not affect the buyer’s claims for reimbursement of “installation and removal costs”.

8.9 If a defect exists, we shall reimburse the costs which are necessary for inspection purposes and for subsequent performance (transport, labour and material costs and, if applicable, removal and installation costs) in accordance with the statutory provisions and these General Terms and Conditions of Sale. However, we may demand reimbursement from the buyer for costs incurred due to an unjustified request to remedy a defect if the buyer knew or could have recognised that there was in fact no defect.

8.10 The buyer has the right to remedy the defect themself and to demand reimbursement of the costs objectively necessary for this purpose if there is an urgent case (e.g. in the event of danger to operational safety or to prevent disproportionate damage). The buyer must inform us immediately if they intend to remedy the defect themself. If we would be entitled to refuse subsequent fulfilment in accordance with the statutory provisions, the buyer shall have no right to remedy the defect themself.

8.11 The buyer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions if a deadline to be set by the buyer for subsequent fulfilment has expired unsuccessfully or is dispensable in accordance with the statutory provisions. In the event of a minor defect, however, the buyer shall have no right of cancellation.

8.12 Claims of the buyer for reimbursement of costs pursuant to Section 445a (1) BGB are excluded, unless the last contract in the supply chain is a consumer goods purchase (Sections 478, 474 BGB) or a consumer contract for the provision of digital products (Sections 445c sentence 2, 327 (5), 327u BGB).

8.13 Even in the event of a defect, claims for damages or claims for reimbursement of futile costs on the part of the buyer (Section 284 BGB) shall only exist in accordance with Sections 9 and 10.

9. Limitation period

9.1 The general limitation period for claims resulting from material defects or defects of title is one year from delivery, in deviation from § 438 paragraph 1 no. 3 BGB. If acceptance has been contractually agreed, the limitation period shall commence upon acceptance.

9.2 In accordance with statutory regulations, the limitation period is 5 years from delivery (Section 438 para. 1 no. 2 BGB) if the goods are a building or an item that has been used for a building in accordance with its normal use and has caused its defectiveness (building material). This applies subject to the other special statutory provisions on the limitation period (in particular Section 438 (1) no. 1, (3), Sections 444, 445b BGB).

9.3 The above limitation periods of the sales law 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 pursuant to Sections 195, 199 BGB would lead to a shorter limitation period in individual cases. The buyer’s claims for damages pursuant to clauses 10.1 and 10.2.a) as well as those pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.

10. Other liability

10.1 Unless otherwise provided for in these General Terms and Conditions of Sale, including the following provisions, we as the seller shall be liable for breaches of contractual and non-contractual obligations in accordance with the statutory provisions.

10.2 Within the scope of fault-based liability, we shall be liable for damages, irrespective of the legal grounds, only in the event of wilful intent and gross negligence. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in our own affairs; insignificant breach of duty), only:

1. a) for damages resulting from injury to life, limb or health,

1. b) for damages caused by the breach of an essential contractual obligation (an obligation, the fulfilment of which enables the proper performance of the contract and upon compliance with which the contracting parties usually rely and may rely). In this case, however, our liability is limited to compensation for foreseeable, typically occurring types of damage.

10.3 The limitations of liability arising in accordance with clause 10.2 shall also apply to third parties and in the event of breaches of duty by persons for whose fault we are responsible in accordance with statutory provisions. Insofar as a defect has been fraudulently concealed and a guarantee for the quality of the goods has been assumed, the limitations of liability shall not apply. This also applies to claims of the buyer under the Product Liability Act.

10.4 The buyer may only withdraw from or terminate the contract due to a breach of duty that does not result from a defect if we as the seller are responsible for the breach of duty.

10.5 A right of termination by the buyer (in particular pursuant to Sections 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

11. Choice of law and place of jurisdiction

11.1 These General Terms and Conditions of Sale and the contractual relationship between us as the seller and the buyer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).

11.2 If the buyer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, our registered office in Bad Reichenhall shall be the exclusive, and also international, place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same shall apply if the buyer is an entrepreneur within the meaning of Section 14 BGB.

11.3 We are also entitled to bring legal action at the place of fulfilment of the delivery obligation in accordance with these General Terms and Conditions of Sale or, as the case may be, pursuant to an agreement which takes precedence, or at the buyer’s general place of jurisdiction. This shall not affect overriding statutory provisions (exclusive places of jurisdiction).