General Terms and Conditions of Sale (GCS)
status as of: July 2019
§1 General – scope of application
(1) Our Conditions of Sale shall apply exclusively; we do not recognise the terms and conditions of Customers when these are contrary to or deviate from our Conditions of Sale, unless we have explicitly agreed to their validity in writing. Our Conditions of Sale shall also apply if we unreservedly carry out a delivery to the Customer in the knowledge that the Customer’s conditions are contrary to or deviate from our Conditions of Sale.
(2) All arrangements concluded for the purpose of executing the contract between us and the Customer shall be set out in writing in this Agreement.
(3) Our Conditions of Sale shall only apply to companies within the meaning of § 310 subsection 1 of the BGB (German Civil Code).
(4) Our Conditions of Sale shall also apply to all future business with the Customer.
§2 Offer – offer documents
(1) If the order is to be qualified as a quote within the meaning of § 145 of the BGB we are entitled to accept this within a period of two weeks.
(2) We retain rights of ownership and copyrights of images, drawings, calculations and other material. This shall also apply to written documents that are designated as ‘confidential’. The Customer shall require our express written consent before passing such material on to third parties.
§3 Prices – conditions of payment
(1) Unless otherwise indicated in the order confirmation our prices are quoted ex works and exclude packaging, which shall be charged separately.
(2) Our prices do not include statutory Value Added Tax; VAT to the statutory amount will be shown separately in the invoice on the day of billing.
(3) Any deduction of discount is subject to special written agreement.
(4) Unless otherwise agreed in the order confirmation the net purchase price (without discount) shall become due within 30 days from the date of invoice. The statutory regulations concerning the consequences of default of payment shall apply.
(5) The Customer will only be entitled to rights of set-off if his counterclaims have been declared legally binding, undisputed or recognised by us. In addition, he shall be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§4 Delivery period
(1) The beginning of the delivery period as specified by us is conditional upon the clarification of all technical issues. This includes, for example, written approval for the release of drawings.
(2) Adherence to our delivery obligations is subject to the prompt and orderly compliance with obligations on the part of the Customer. We reserve the right to raise objections to the non fulfilment of the contract.
(3) In the event that the Customer is in default of acceptance or otherwise infringes other obligations to cooperate, we shall be entitled to claim for damages incurred by us, including any possible additional expenses. All other claims and rights remain reserved.
(4) Providing the prerequisites of subsection (3) are met the risk of accidental loss or degradation of the purchased item shall be transferred to the Customer at the moment that he is in default of acceptance or payment.
(5) We shall be liable according to statutory provisions provided the underlying purchase agreement is a fixed-date delivery within the meaning of § 286 subsection 2 (4) of the BGB or § 376 of the HGB (German Commercial Code). We shall also be liable according to statutory provisions if, as a consequence of a delivery delay for which we are responsible, the Customer is entitled to assert that his interest in the further fulfilment of the agreement no longer exists.
(6) We shall further be liable according to statutory provisions if the delayed delivery has been caused by a deliberate or grossly negligent breach of the contract on our part; negligence on the part of our representatives or agents is to be attributed to us. In the event that the delayed delivery is due to a grossly negligent breach of the contract on our part our liability for compensation shall be limited to foreseeable damages of a typical nature.
(7) We shall also be liable according to statutory provisions if the delayed delivery for which we are to be held responsible has been caused by a culpable breach of an essential contractual obligation; in such a case, however, liability for compensation shall be limited to foreseeable damages of a typical nature.
(8) All other claims and rights on the part of the Customer remain reserved.
§5 Transfer of risk – packaging costs
(1) Unless otherwise stated in the order confirmation delivery is agreed to be ex works.
(2) Special agreements shall apply for the return of packaging materials.
(3) We can, at the Customer’s request, take out transport insurance for the shipment; in such cases the costs incurred will be borne by the Customer.
§6 Liability for defects
(1) Warranty claims by the Customer shall be conditional on the latter having properly fulfilled his obligation to inspect and give notification of defects in accordance with § 377 of the HGB.
(2) Insofar as there is a defect in the purchased item the Customer shall be entitled to subsequent fulfilment by opting either for the rectification of the defect or the delivery of a new defect-free item. In the case of a rectification of the defect or a replacement delivery we are obliged to bear all the expenditure needed for subsequent fulfilment, and in particular the cost of transport, travel, labour and materials, insofar as these costs are not increased by the fact that the purchased item has been moved to a location other than the place of fulfilment.
(3) In the event that subsequent fulfilment fails the Customer shall be entitled to opt for either rescission or a price reduction.
(4) We shall be liable according to the statutory provisions insofar as the Customer makes claims for damages that are based on intent or gross negligence, including intent or gross negligence by our representatives or agents. Unless we are being charged with deliberate breach of contract our liability for compensation shall be limited to foreseeable damages of a typical nature.
(5) We shall be liable according to the statutory provisions insofar as we are culpably in breach of a material obligation under the contract; in such a case our liability for compensation shall also be limited to foreseeable damages of a typical nature.
(6) Insofar, moreover, as the Customer holds a claim to compensation for loss or damage because of negligent breach of duty our liability for compensation shall be limited to foreseeable damages of a typical nature.
(7) Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to statutory liability under the Product Liability Act.
(8) Any further liability on our part is precluded, unless otherwise regulated in the foregoing provisions.
(9) The limitation period for claims arising from defects shall be 24 months, beginning with the transfer of risk. This shall not apply insofar as the purchased item is normally used for construction work and has actually caused the defect.
(10) The limitation period in the case of recovery against a supplier under §§ 478 and 479 of the BGB shall remain unaffected; this shall amount to five years, beginning from the date of delivery of the defective goods.
§7 Overall liability
(1) A more extensive liability for damages than that specified in § 6 shall be excluded, irrespective of the legal nature of the claim being made. This shall apply particularly in the case of breaches of duty in the conclusion of the contract and as a result of other breaches of duty or tortious claims for compensation for material damage under § 823 of the BGB.
(2) The limitation under subsection (1) shall also apply insofar as the Customer, instead of making a claim for compensation of the loss, demands the replacement of wasted expenses in lieu of performance.
(3) As far as the liability for damages on our part is excluded or restricted, this shall likewise apply in respect of the personal liability of our employees, workers, staff members, representatives and agents.
§8 Guarantee of retention of title
(1) We reserve title of ownership to the purchased item until all payments arising from the delivery contract have been received. If the Customer acts in breach of contract, particularly in the event of a default of payment, we shall be entitled to recover the goods. Our repossession of the goods shall constitute withdrawal from the contract. After having retaken possession of the goods we are entitled to make commercial use of them, whereby the proceeds from the realisation of the sale shall be set off against the amount owed by the Customer, less reasonable administrative costs.
(2) The Customer undertakes to treat the purchased goods with due care; he is obliged in particular, and at his own cost, to take out adequate insurance cover for the goods against fire, water damage and theft at their replacement value. If maintenance and inspection work is required this is to be carried out by the Customer punctually and at his own expense.
(3) In the event of seizures or other actions by third parties the Customer is required to notify us of this immediately in writing so that we can bring an action under § 771 of the ZPO (Code of Civil Procedure). If the third party is not in a position to reimburse us for the court and out-of-court costs of a lawsuit under § 771 of the ZPO the Customer shall in such a case be liable to us for the resulting loss.
(4) The Customer is entitled to resell the purchased goods in the ordinary course of business; however, he shall herewith assign to us all receivables up to the final invoice amount of our claim (including VAT) that arise from the resale of the goods to his customers or third parties, and this irrespective of whether the purchased item has been sold on with or without further processing. The Customer shall retain the right of recovery of the debt even after this transfer has taken place. Our authority to collect the receivables ourselves remains unaffected thereby. However, we undertake not to collect on the claim as long as the Customer complies with his payment obligations arising out of the proceeds collected, is not in default of payment and, in particular, no application has been made for the opening of a composition or insolvency procedure and no suspension of payments occurs. Should this be the case, however, we may demand that the Customer discloses to us the assigned claims and their debtors, provides us with all the information needed to collect the claims, hands over the relevant documents and notifies the debtors (third parties) of the assignment.
(5) Any processing or reforming of the purchased item by the Customer shall always be done on our behalf. If the purchased item is processed with other objects that do not belong to us we shall acquire joint ownership of the new item as a ratio of the value of the purchased item (final invoice amount including VAT) to that of the other processed objects at the time of processing. For items created by processing the same rules shall apply as for goods delivered under reservation of title.
(6) If the purchased item is intermixed inseparably with other objects not belonging to us we shall acquire co-ownership of the new item as a ratio of the value of the purchased product (final invoice amount including VAT) to that of the other processed objects at the time of the intermixing. If after intermixing the goods belonging to the Customer are to be considered the primary product it is agreed that the Customer shall transfer pro rata co-ownership to us. The Customer shall in such cases hold sole ownership or co-ownership on our behalf.
(7)In order to support and safeguard our claims against him the Customer shall also assign to us any claims arising against third parties that result from the joining of the said goods with real property.
(8)We hereby undertake, at the Customer’s request, to release the securities due to us insofar as the realisable value of our securities exceeds the claims to be secured by more than 10%; we shall be responsible for selecting which securities to release.
§9 Place of jurisdiction – place of fulfilment
(1) Where the Customer is a registered merchant the place of jurisdiction shall be our registered office; however, we shall also be entitled to bring a legal action against the Customer at his own place of jurisdiction.
(2) The laws of the Federal Republic of Germany shall apply, with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
(3) Unless otherwise specified in the order confirmation the place of fulfilment shall be our company head office.