§ 1 Validity
(1) All deliveries, services and offers of the Seller shall be made exclusively on the basis of these General Terms of Delivery. These are an integral part of all contracts which the Seller concludes with its contractual partners (hereinafter referred to as “Buyer”) for the deliveries and services offered by the Seller with respect to the Products. They shall also apply to all future deliveries, services or offers to the Buyer, even if they are not separately agreed again.
(2) Terms and conditions of the Buyer 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 which contains or refers to the terms and conditions of the Buyer or of a third party, this shall not constitute an agreement with the validity of those terms and conditions.
§ 2 Offer and conclusion of contract
(1) All offers of the seller are subject to confirmation and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The Seller may accept orders or commissions within seven days of receipt.
(2) The legal relationship between the Seller and the Buyer shall be governed solely by the purchase contract concluded in writing, including these General Terms and Conditions of Delivery. Oral statements made by the Seller prior to the conclusion of the purchase contract shall not be legally binding and oral agreements of the parties to the contract shall be replaced by the written purchase contract unless it is expressly stated in each case that they shall continue to be binding in exceptional cases.
(3) Supplements and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be made in writing in order to be effective. In order to comply with the written form, the telecommunication transmission, in particular by telefax or e-mail, shall suffice if the copy of the signed declaration is transmitted.
§ 3 Prices
(1) The Seller’s prices shall apply to the services and scope of delivery listed in the order confirmation ex works. Additional or special services as well as packaging shall be charged separately. Prices are quoted in Euro plus freight, statutory value-added tax and other public charges.
(2) Insofar as the Seller’s agreed prices are based on its 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.
(3) Unless otherwise agreed, orders are payable in advance (prepayment, credit card, cash on delivery).
(4) The set-off against counterclaims of the purchaser or the retention of payments due to such claims is only permissible if these counterclaims are undisputed or legally established.
§ 4 Delivery
(1) Deliveries of the products shall be ex works.
(2) The delivery takes place, after arrangement within 30 days after receipt of payment in accordance with § 3 Abs. (3).
(3) Deadlines and dates for deliveries and services promised by the vendor are always approximate unless a fixed deadline or date has been expressly agreed or promised. 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 the transport.
(4) Notwithstanding the Seller’s rights arising from the Buyer’s default, the Seller shall be entitled to demand from the Buyer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period in which the Buyer fails to meet its contractual obligations towards the Seller.
(5) The Seller shall not be liable for the impossibility of delivery or for delays in delivery insofar as these were caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in procuring materials, transport delays, strikes, lockouts, official measures or the failure to deliver, incorrectly delivering or late delivering by suppliers) for which the Seller is not responsible. Insofar as such events of the Seller make the delivery or services substantially more difficult or impossible 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 postponed by the period of the hindrance plus a reasonable start-up period. If acceptance of the delivery or service cannot reasonably be expected of the Buyer as a result of the delay, the Buyer may withdraw from the contract by immediate written declaration to the Seller.
(6) The Seller shall be entitled to make partial deliveries and/or services if such partial delivery and/or service is reasonable for the Buyer.
(7) If the Seller defaults on a delivery or service or if a delivery or service becomes impossible for the Seller for whatever reason, the Seller’s liability shall be limited to damages in accordance with § 8 of these General Terms and Conditions of Delivery.
§ 5 Shipping
(1) The mode of dispatch and packaging are subject to the dutiful discretion of the seller.
(2) The risk shall pass to the buyer at the latest when the products are handed over to the forwarding agent, carrier or other third party appointed to carry out the shipment. This shall also apply if partial deliveries are made and the Seller has not assumed any other services. If dispatch or handover is delayed due to circumstances for which the Buyer is responsible, the risk shall pass to the Buyer from the day on which the products are ready for dispatch and the Seller has notified the Buyer accordingly.
(3) Storage costs after transfer of risk shall be borne by the Buyer. In the event of storage by the Seller, the storage costs shall amount to 2% of the invoice amount of the delivery items to be stored per expired day. We reserve the right to assert and prove further or lower storage costs.
(4) The Seller shall insure the consignment against theft, breakage, transport, fire and water damage or other insurable risks only at the express request of the Buyer and at the Buyer’s expense.
(5) The Products shall be deemed accepted when the delivery has been completed, the Seller has informed the Buyer of this with reference to the acceptance fiction and requested the Buyer to accept the Products, five working days have elapsed since delivery or the Buyer has begun to use and exploit the Products and the Buyer has refrained from acceptance within this period for any reason whatsoever as a result of a defect notified to the Seller which makes the use of the Products impossible or significantly impairs them.
(6) The Seller shall not be responsible for delays in delivery and/or performance resulting from force majeure, even if dates and deadlines have been bindingly agreed. In the event of force majeure, the Seller shall be entitled to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up period or to withdraw from the contract in whole or in part on account of the part not yet performed.
§ 6 Warranty
(1) The warranty period shall be 24 months from delivery or – if acceptance is required – from acceptance.
(2) The delivered products shall be carefully inspected by the Buyer immediately upon receipt. They shall be deemed approved by the Buyer with regard to obvious defects or other defects that would have been recognizable in an immediate, careful inspection if the Seller does not receive a written notice of defect within five working days of delivery. With regard to other defects, the Products shall be deemed to have been approved by the Buyer if the notice of defects is not received by the Seller within five working days of the date on which the defect was discovered. At the Seller’s request, the products complained of 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 cheapest shipping route.
(3) In the event of material defects of the products, the Seller shall be obliged and entitled to remedy the defect or to make a replacement delivery at its discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonability, refusal or unreasonable delay of the repair or replacement, the Buyer may withdraw from the contract or reasonably reduce the purchase price.
§ 7 Liability
(1) The Seller’s liability for damages, irrespective of the legal basis, is limited. The Seller shall not be liable in the event of simple negligence, unless it is a matter of a breach of material contractual obligations.
(2) If the Seller is liable for damages in accordance with paragraph (1) above, this liability shall be limited to damages which the Seller foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or which it should have foreseen if it had exercised due care. Indirect damage and consequential damage resulting from defects in the delivered product are also only eligible for compensation if such damage can typically be expected when the delivered products are used and stored as intended.
(3) The above exclusions and limitations of liability shall apply to the same extent for the benefit of the Seller’s executive bodies, legal representatives, employees and other vicarious agents.
(4) The exclusions and limitations of liability shall not apply to the Seller’s liability for intentional conduct, for guaranteed characteristics, for injury to life, limb or health or for claims under the Product Liability Act.
§ 8 Retention of title
(1) All delivered products shall remain the property of the Seller until the Buyer has settled all claims, in particular claims from current bills of exchange and cheques as well as claims from the balance of the business relationship with the Seller.
(2) The Buyer is prohibited from pledging or assigning by way of security the products delivered under retention of title. In the event of seizures, confiscations or other interventions by third parties, the Buyer shall notify the Seller immediately.
(3) The Buyer shall be entitled to resell the goods subject to retention of title in the ordinary course of business under the condition that the reseller receives payment from his customers or makes the reservation to the customer that ownership shall not pass to the customer until the payment obligations have been fulfilled. The future claims of the purchaser arising from the resale with all ancillary rights – including balance claims – are hereby assigned by the purchaser to the seller by way of security without the need for further declarations. If the products delivered by the Seller are sold together with other products without an individual price having been agreed, the Buyer shall assign to the Seller that part of the total price claim which economically corresponds to the price invoiced by the Seller for the products delivered under retention of title.
(4) The Seller revocably authorises the Buyer to collect the claims assigned to the Seller in its own name.
(5) Should the Buyer acquire claims against an insurer or other third parties as a result of damage, reduction, loss or other loss of the products delivered under retention of title, these claims, together with all ancillary rights, shall already now be assigned to the Seller to the extent of the value of the products delivered under retention of title at the time of delivery.
(6) In the event of breaches of duty on the part of the Buyer, in particular default in payment, the Seller shall be entitled to perform and rescind the contract after expiry of a reasonable period of grace. The statutory provisions on the dispensability of setting a deadline shall remain unaffected. After rescission, the Seller shall be entitled to demand the return of the reserved goods.
(7) The Seller shall release the goods subject to retention of title as well as the items or claims replacing them insofar as their value exceeds the amount of the secured claims by more than 50 %.
§ 9 Final provisions
(1) The place of performance for all obligations arising from the individual contractual relationships is Lüneburg as the seller’s place of business.
(2) The place of jurisdiction for any disputes arising from the business relationship between the Seller and the Buyer shall be Lüneburg as the registered office of the Seller.
(3) This agreement and the resulting legal relationships between the Seller and the Buyer shall be governed exclusively by the laws of the Federal Republic of Germany.
(4) Insofar as these General Terms and Conditions of Delivery or the individual contracts concluded as a result 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 Delivery had they been aware of the loophole.