GENERAL TERMS AND CONDITIONS (VERSION: 09/2017)
§ 1 SCOPE OF APPLICATION AND FORM
(1) These General Terms & Conditions (GTC) govern all business relationships with our customers (“Buyers”). These GTC only apply if the Buyer is an entrepreneur (Sec. 14 of German Civil Code/BGB), a legal person under public law or a public-law fund.
(2) These GTC apply in particular to contracts for the sale and/or supplying of movable goods (“merchandise”), irrespective of whether we produce the merchandise ourselves or purchase it from suppliers (Sec. 433, Sec. 651 BGB). Except as otherwise agreed, these GTC constitute a framework agreement which applies in its latest amended form as at the time of order placement by a Buyer, i.e. in the version last communicated in text form – and applies to similar future contracts – without our having to state that the GTCs apply in each individual case.
(3) These GTC apply to the exclusion of any and all other terms. Other, conflicting or supplementary terms and conditions of the Buyer shall only become part of the contractual agreement if we have expressly approved their applicability. This approval requirement shall apply without exception, including for example if we deliver to a Buyer without stating reservation despite awareness of the Buyer’s terms and conditions.
(4) Individual covenants agreed with the Buyer (including collateral contracts, addenda and amendments) supersede these GTC in precedence, without exception. The content of such covenants shall be as set forth in a corresponding written agreement document or our written confirmation, except as proved otherwise.
(5) Contractually relevant declarations by and notifications from the Buyer (such as setting of deadlines, notification of defects, contract withdrawal and price reductions) must be given in writing, i.e. in written or text form (letter, e-mail, fax, etc.). Statutory form requirements remain unaffected and other documentation may apply, especially in case of doubt regarding the legitimacy of the declarant party.
(6) References to the applicability of statutory provisions are made solely for clarification purposes. Statutory provisions thus apply even without such clarification, except as specifically amended or expressly excluded in these GTC.
§ 2 CONTRACT CONCLUSION
(1) Offers we extend are non-committal and non-binding. This still applies if we have given the Buyer catalogs, technical documentation (drawings, plans, calculations, price quotes, references to DIN standards, etc.) or other product descriptions or documents – including in electronic form – to which we hold intellectual property rights and/or copyrights.
(2) Placement of an order for merchandise by the Buyer constitutes a binding offer to conclude a contract. Except as otherwise stated in an order, we are entitled to accept such a contract conclusion offer within two weeks of order receipt, until the closing of the ordering period for the respective season.
(3) Acceptance may be declared either in writing (e.g. by order confirmation) or by virtue of delivery of the merchandise to the Buyer.
§ 3 DELIVERY DEADLINES AND DELAYS
(1) Delivery deadlines based on a target of the respective dispatch window plus eight (8) business days. Differing dispatch windows apply for the different collections. Merchandise can only be delivered in these periods of the relevant dispatch window plus eight (8) business days, or later by customer request. In no case can merchandise be delivered before the opening date of the dispatch window for the collection in question. We announce the dispatch windows for each season prior to opening of the order period. If the Buyer orders merchandise from all three collections for a single delivery deadline, all of the merchandise shall be deliverable on the basis of the dispatch window for Collection 3 plus eight (8) business days. If the Buyer orders merchandise from Collections 1 and 2 for a single delivery deadline, all of the merchandise shall be deliverable on the basis of the dispatch window for Collection 2 plus eight (8) business days. If the Buyer orders merchandise from Collections 1 and 3 for a single delivery deadline, all of the merchandise shall be deliverable on the basis of the dispatch window for Collection 3 plus eight (8) business days. Partial deliveries from the collections are possible irrespective thereof, applying the respective dispatch windows.
(2) If the merchandise is not available for delivery by the deadline, we are entitled to withdraw from the contract, wholly or in part. Any payments the Buyer has already made will be promptly refunded. Merchandise shall in particular be deemed non-deliverable in case of delivery delays on the part of our supplier, if we have made a congruent cover transaction, if neither we nor our supplier are at fault and/or if we have no procurement obligation in a given case.
(3) A delivery delay is never in evidence prior to elapse of a delivery grace period. Nor is a delivery delay in evidence if we are not responsible for a fulfillment delay. In case of statutory culpability, our liability is limited to cases of willful intent and gross negligence. The Buyer is required to send a late notice, without exception.
(4) The rights of the Buyer as per section 8 of these GTC and our statutory rights shall remain unaffected, including particularly in case of exclusion of performance obligation (due for example to performance and/ or follow-up performance being impossible or not reasonably feasible).
§ 4 DELIVERY, PASSING OF RISK, ACCEPTANCE, ACCEPTANCE DELAYS
(1) Delivery is made from our warehouse, which is the place of fulfillment for delivery and any follow-up performance. At the Buyer’s request and expense, merchandise can be shipped to a different destination. Except as otherwise agreed, we are entitled to decide shipping modalities (including particularly the freight carrier, dispatch route and packaging) at our discretion.
(2) Risk of accidental loss or deterioration of the merchandise passes to the Buyer no later than the point of handover. In transactions in which shipping is requested to a different specified destination, risk of accidental loss or deterioration of the merchandise and delay risk passes already upon handover of the merchandise to the hauler, freight forwarder or other party or organization chosen to perform shipping. Any agreed acceptance provisions shall apply regarding passing of risk. Statutory law governing work contracts furthermore applies mutatis mutandis to agreed acceptance provisions. If the Buyer is in delay of acceptance, handover and acceptance are deemed to have occurred.
(3) If the Buyer is in delay of acceptance, fails to cooperate, or culpably delays our delivery for other reasons, we shall be entitled to claim damages as compensation for resulting losses, including extra costs accruing (such as warehousing costs).
§ 5 PRICING AND PAYMENT TERMS
(1) Except as otherwise agreed in a specific case, our current prices as at the time of contract conclusion apply ex-store, plus VAT at the applicable rate.
(2) In case of shipping to a different specified destination (section 4, item 1), the Buyer bears shipping costs ex-store and costs for any shipping insurance required by the Buyer. Any duties, fees, taxes and other public charges shall be borne by the Buyer.
(3) Purchase prices are due and payable within 60 days after the invoice date. We are, however, entitled at any time to demand advance payment for part or all of an order prior to delivery, even in the context of an ongoing business relationship. We will declare such a requirement no later than upon order confirmation. We grant an early payment discount of 4% on the invoiced purchase price before tax for payment within ten (10) days of the date of invoice. We grant an early payment discount of 2.25% on the invoiced purchase price before tax for payment within 11 to 30 days of the date of invoice.
(4) The Buyer is in arrears on invoice payment upon the elapse of a period of 60 days from the date of invoice. Interest is charged on the purchase price at the applicable statutory rate for the period of arrears. We reserve the right to assert further damages for arrears. Our claim against entrepreneurs to interest on commercial arrears (Sec. 353 of German Commercial Code/HGB) remains unaffected.
(5) The Buyer shall only have set-off or withholding rights to a claim that has either been upheld by legal judgment or is undisputed. The opposing rights of the Buyer in case of delivery defects, including particularly under section 7, item 6, sentence 2 of these GTC, remain unaffected.
(6) Should it become evident after contract conclusion that our claim to the purchase price is jeopardized due to inadequate solvency on the part of the Buyer (such as by virtue of filing for insolvency proceedings), we have the right to withdraw from the contract in accordance with statutory refusal of performance laws, setting a grace period as applicable (Sec. 321 BGB). We are entitled to declare immediate withdrawal from contracts to produce custom goods (made to specification). Statutory laws governing the dispensability of setting a grace period remain unaffected.
§ 6 RETENTION OF TITLE
(1) We retain title to merchandise sold until payment in full of all claims present and future arising from the purchase contract and the ongoing business relationship (secured claims).
(2) Prior to payment in full of secured claims, merchandise subject to retention of title may neither be pledged to third parties nor transferred to third parties as collateral. The Buyer must notify us immediately in writing if filing for the opening of insolvency proceedings and of any attempts by third parties to encumber (e.g. attach) merchandise to which we hold title.
(3) In case of breach of contract by the Buyer, including particularly non-payment of a due purchase price, we are entitled to withdraw from the contract and/or demand handover of retained-title merchandise in accordance with statutory law. A demand to hand over merchandise does not constitute a declaration of withdrawal. We are entitled to simply demand handover of the merchandise, reserving the right to withdraw from the contract. If the Buyer fails to pay a due purchase price, we may be required by law to set the Buyer a reasonable grace period for payment which must first fruitlessly elapse before asserting the above rights, or such a grace period is dispensable under statutory provisions.
(4) Until rescission as outlined under point (c) below, the Buyer is entitled to resell and/or process retained-title merchandise as part of ordinary business operations. The provisions below shall apply on a supplementary basis in such case.
(a) Retention of title extends to the full value of products resulting from processing, mixing or combining of/with our merchandise, and we shall be deemed manufacturer of such products. If ownership of products made through processing, mixing or combining of/with third-party goods should nonetheless accrue, we acquire co-ownership thereof in the percentage of the individual invoice values of the processed, mixed or combined goods. The same shall furthermore apply to a resulting product as to merchandise delivered subject to retention of title.
(b) By way of surety, the Buyer hereby assigns claims against third parties arising from the resale of merchandise or goods/products, either in full or in the amount of any co-ownership percentage accruing to us as applicable in accordance with the preceding clause. We accept such assignment. The obligations of the Buyer as outlined under item 2 shall also apply in respect of assigned claims.
(c) The Buyer remains authorized to collect on claims alongside our own entitlement to do so. We undertake not to collect on a claim as long as the Buyer meets his payment obligations to us, has no evident solvency problems and we do not assert retention of title by exercising rights as per item 3 above. If the above conditions are not met however, we may demand that the Buyer disclose the assigned receivables and the identity of the respective resale debtors to us, providing all data necessary for collection, handing over related documents and notifying said (third-party) debtors of assignment. We shall furthermore be entitled in such case to rescind the Buyer’s authorization to resell and process merchandise subject to retention of title.
(d) If the realizable value of the collateral securing our claims exceeds the claim value by more than 10%, we will release collateral of our choosing upon request by the Buyer.
§ 7 DEFECT CLAIMS ACCRUING TO THE BUYER
(1) Statutory law shall govern the rights of the Buyer in case of material or title defects (including incorrect and incomplete delivery, improper assembly and faulty assembly instructions) except as otherwise provided below. The special statutory provisions shall remain unaffected without exception in case of final delivery of goods to a consumer (supplier recourse as per Sec. 478 and Sec. 479 BGB).
(2) Agreed characteristics of merchandise represent the primary basis determining the scope of our liability for defects. All product descriptions which form the content of an individual contract or which we have published (in particular in a catalog or on our website) constitute agreed merchandise characteristics.
(3) Whether a defect is in evidence regarding a non-agreed characteristic is to be judged on the basis of statutory law (Sec. 434, para. 1, sentences 2 and 3 BGB). We do not however assume any liability for statements made by third parties (such as in advertising).
(4) The prerequisite for a defect claim to accrue to the Buyer is that the Buyer has met the applicable statutory inspection and complaint obligations (Sec. 377 and Sec. 381 HGB). We must be notified immediately in writing of any defect evident at the time of delivery, identified during in spection or at any later point in time. Without exception, obvious defects must be reported in writing within ten (10) business days from the date of delivery; defects not identifiable in an inspection must be reported in writing within the same period following their identification. If the Buyer fails to properly inspect and/or report a defect, our liability for the defect not promptly identified or properly reported is excluded in accordance with statutory law.
(5) If a delivered item is defective, we first determine at our discretion whether to attempt follow-up performance by eliminating the defect (subsequent improvement) or by delivering a defect-free new item (replacement delivery). Our right to refuse follow-up performance in accordance with the statutory conditions remains unaffected.
(6) We are entitled to make follow-up performance contingent upon payment of the due purchase price by the Buyer. The Buyer is entitled however to withhold an appropriate portion of the purchase price commensurate with the severity of the defect.
(7) The Buyer shall grant us the time and opportunity necessary for follow-up performance, including particularly handing over of the merchandise subject to complaint for inspection purposes. In case of replacement delivery, the Buyer must return the defective item in accordance with the statutory provisions.
(8) If a defect is actually in evidence, we bear the expenditures necessary for inspection and follow-up performance, including particularly shipping, travel, labor and material costs (de-installation and installation costs are excluded). Otherwise, we are entitled to demand compensation from the Buyer for costs accruing through unjustified defect remediation demands (including particularly inspection and shipping costs), unless the absence of a defect was not evident to the Buyer.
(9) In urgent cases, such as endangerment of operational safety and in order to prevent greater losses, the Buyer is entitled to remedy a defect independently himself and demand reimbursement of the expenses objectively necessary to do so. We must be informed without delay, as far as possible in advance, of any such attempt to independently remedy a defect. Entitlement to independently remedy a defect does not accrue if we can justifiably refuse follow-up performance in accordance with statutory law.
(10) If a follow-up performance fails, if a reasonable grace period for follow-up performance to be set by the Buyer fruitlessly elapses or if such a grace period is not required under statutory law, the Buyer may withdraw from the purchase contract or reduce the purchase price. Right of withdrawal does not accrue however in case of minor defects.
(11) Even in case of defects, Buyer claims for damages or reimbursement of futile expenditures are only permissible as provided under section 8 and otherwise excluded.
§ 8 OTHER LIABILIT
(1) Except as otherwise specified in these GTC, including the provisions below, our liability in case of any breach of contractual or extra-contractual obligations shall be as governed by statutory law.
(2) We are liable for damages if culpable of willful intent or gross negligence on any legal grounds. Unless statutory law provides for a reduced scope of liability (such as for due diligence in internal affairs), in cases of simple negligence we may only be liable
a) for damages resulting from loss of life or bodily injury/harm,
b) for damages resulting from significant breach of a primary contractual obligation (i.e. an obligation which must be fulfilled as a prerequisite for proper contract execution, on which the contracting parties may and do generally rely). In such cases our liability is limited however to the amount of damages typically foreseeable.
(3) The liability limitations as per item 2 also apply in case of breach of obligations by or benefiting persons for whose actions we are responsible under statutory law. The aforesaid limitations do not apply if we have maliciously concealed a defect or guaranteed the characteristics of the merchandise, or if a claim accrues to the Buyer under the Product Liability Act.
(4) The Buyer may only withdraw from or terminate the contract if we are culpable for a breach of obligation not arising from a defect. Discretionary termination rights for the Buyer are excluded (including particularly as per Sec. 651 and Sec. 649 BGB). In all other respects, the statutory requirements and legal consequences shall be applicable
§ 9 EXPIRATION OF CLAIMS
(1) Superseding Sec. 438, para. 1, no. 3 BGB, the regular expiration period for material or title defect claims shall be one year from delivery. If an acceptance has been agreed, the expiration of claims period begins on the date of acceptance. Special statutory claims for expiration periods remain unaffected (particularly Sec. 438, para. 1, no. 1 and para. 3, Sec. 444 and Sec. 479 BGB). (2) The above claims expiration periods for purchase transactions also apply to contractual and extra-contractual damage claims asserted by the Buyer arising from merchandise defects unless a shorter expiration period would apply under the regular statutory claims expiration provisions (Sec. 195, Sec. 199 BGB) in a given case. Damage claims asserted by the Buyer as per Sec. 8, para. 2 sentence 1 and sentence 2(a) and under the Product Liability Act are however exclusively subject to statutory expiration of claims provisions.
§ 10 CHOICE OF LAW, PLACE OF JURISDICTION, SEVERABILITY
(1) The laws of the Federal Republic of Germany shall govern these GTC and the contractual relationship between us and the Buyer, under exclusion of international uniform law, including specifically UN Convention on Contracts for the International Sale of Goods (CISG).
(2) If the Buyer is a merchant as defined by the German Commercial Code (HGB), a legal person under public law or a public-law fund, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship – including international disputes – shall be Amberg. The same applies if the Buyer is an entrepreneur within the meaning of Sec. 14 BGB. We are entitled in all cases however to file suit at the place of fulfillment of the delivery obligation in accordance with these GTC or with an individual agreement of superior precedence, or at the general place of jurisdiction of the Buyer. Statutory provisions of superior precedence, including particularly provisions governing exclusive jurisdiction, remain unaffected.
(3) Should any provision of these GTC or of any other agreements concluded be or become invalid, the validity of the remainder of the agreement shall not be thereby affected. The contracting parties are obliged to replace any invalid provision with one which fulfills the intended economic outcome to the closest possible extent.