General Terms and Conditions of Sale (GTCS)
1.1 These General Terms and Conditions of Sale (GTCS) apply to all our business relationships with our customers (“Buyer”). The GTCS apply only if the Buyer is an entrepreneur (§ 14 German Civil Code – BGB), a legal entity under public law, or a special fund under public law within the meaning of § 310 para. 1 BGB.
1.2 Our GTCS apply exclusively. Deviating, conflicting, or supplementary general terms and conditions of the Buyer shall only become part of the contract to the extent that we have expressly consented to their application. This requirement of consent applies even if the Buyer refers to its own terms and conditions in the context of the order and we do not expressly object to them.
1.3 These GTCS apply to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the version of the GTCS valid at the time of the Buyer’s order, or the version last communicated to the Buyer in text form, shall also apply as a framework agreement to similar future contracts without us having to refer to them again in each individual case.
1.4 Individual agreements made with the Buyer in specific cases (including side agreements, amendments, and modifications) and statements in our order confirmation take precedence over these GTCS. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or our written confirmation.
1.5 Legally relevant declarations and notifications by the Buyer with respect to the contract (e.g., notices of defects, setting of deadlines, withdrawal, or reduction of price) must be made in writing (i.e., in written or text form, such as letter, email, or fax). Statutory form requirements and further evidence, particularly in cases of doubt regarding the legitimacy of the declaring party, remain unaffected.
1.6 References to the applicability of statutory provisions are for clarification purposes only. The statutory provisions apply even without such clarification, unless they are directly amended or expressly excluded in these GTCS.
2.1 Our offers are non-binding and subject to change. This also applies if we have provided the Buyer with catalogs, technical documentation (e.g., drawings, plans, calculations, references to DIN standards), or other product descriptions or documents – including in electronic form. We reserve ownership and intellectual property rights in all documents provided to the Buyer in connection with the placing of the order. Such documents may not be made accessible to third parties unless we give our express written consent.
2.2 The Buyer’s order of the Goods constitutes a binding offer to conclude a contract pursuant to § 145 BGB. Unless otherwise stated in the order, we are entitled to accept this offer within two weeks of receipt.
2.3 Acceptance may be declared either in writing (e.g., by order confirmation) or by delivering the Goods to the Buyer. If we do not accept the Buyer’s offer within the period specified in clause 2.2, any documents transmitted to the Buyer must be returned to us immediately.
3.1 Unless otherwise agreed in writing in individual cases, our prices current at the time of conclusion of the contract shall apply ex warehouse, plus statutory VAT. Packaging costs will be invoiced separately. In the absence of a fixed-price agreement, reasonable price changes due to changes in labor, material, and distribution costs remain reserved for deliveries made 3 months or later after conclusion of the contract.
3.2 In the case of a mail-order purchase, the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. If we do not invoice the actual transport costs incurred, a flat-rate transport charge (excluding transport insurance) of […] shall apply. Any customs duties, fees, taxes, and other public charges shall be borne by the Buyer.
3.3 Payment of the purchase price must be made exclusively to the account specified overleaf. Deduction of cash discount is only permitted with special written agreement.
3.4 Unless otherwise agreed, the purchase price is due and payable within fourteen days of invoicing and delivery or acceptance of the Goods. However, even within an ongoing business relationship, we are entitled at any time to make delivery in whole or in part only against advance payment. We will declare any such reservation no later than with the order confirmation.
3.5 The Buyer shall be in default upon expiry of the above payment period. During default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time (§ 288 para. 2 BGB: currently 9 percentage points above the base interest rate). We reserve the right to claim further damages caused by default. Our claim to commercial maturity interest (§ 353 German Commercial Code – HGB) against merchants remains unaffected.
3.6 If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is jeopardized by the Buyer’s lack of ability to perform (e.g., by an application to open insolvency proceedings), we are entitled under statutory provisions to refuse performance and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible items (custom-made products), we may declare withdrawal immediately; statutory provisions regarding the dispensability of setting a deadline remain unaffected.
The Buyer shall only have rights of set-off or retention if its claim has been finally adjudicated or is undisputed and is based on the same contractual relationship. In the event of defects in the delivery, the Buyer’s counter-rights, in particular pursuant to clause 8.6 sentence 2 of these GTCS, remain unaffected.
5.1 Delivery periods are agreed individually or stated by us upon acceptance of the order. If no delivery period is specified, it shall be approximately [ ] weeks from conclusion of the contract.
5.2 If we are unable to meet binding delivery deadlines for reasons beyond our control, we shall inform the Buyer immediately and simultaneously communicate the expected new delivery period. If the delivery is still not possible within the new delivery period, we are entitled to withdraw from the contract in whole or in part; any consideration already paid by the Buyer will be refunded without delay. Examples of non-availability include late delivery by our supplier, conclusion of a congruent hedging transaction, other disruptions in the supply chain (e.g., force majeure), or cases where we are not obliged to procure in the individual case.
5.3 The occurrence of delay in delivery shall be determined by statutory provisions. In any event, a reminder by the Buyer is required. If we are in delay, the Buyer may claim lump-sum compensation for damage caused by the delay. The lump-sum amount is 0.5% of the net price (delivery value) for each full calendar week of delay, but not more than 5% of the delivery value of the delayed Goods in total. We reserve the right to prove that the Buyer suffered no damage or significantly less damage than the above lump sum.
5.4 The Buyer’s rights under clause 9 of these GTCS and our statutory rights, particularly in the event of an exclusion of the obligation to perform (e.g., due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.
6.1 Delivery is ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the Buyer’s request and expense, the Goods may be shipped to another destination (mail-order purchase). Unless otherwise agreed, we are entitled to determine the method of shipment (packaging, route, carrier).
6.2 Risk of accidental loss or deterioration passes to the Buyer upon handover of the Goods. In the case of mail-order purchase, risk passes upon handover to the carrier or freight forwarder. If acceptance has been agreed, it is decisive for the passing of risk. Statutory provisions of the law on contracts for work and services also apply accordingly to an agreed acceptance. Handover or acceptance is deemed equivalent if the Buyer is in default of acceptance.
6.3 If the Buyer is in default of acceptance or if delivery is delayed for reasons for which the Buyer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g., storage costs). In such cases, we charge a lump-sum compensation of [ ] EUR per calendar day, starting with the delivery deadline or – if no delivery deadline was specified – with notification of readiness for dispatch. This does not affect our statutory claims (in particular for reimbursement of additional expenses, reasonable compensation, or termination) or the right to prove higher damages. The Buyer may prove that we suffered no damage or significantly less damage than the above lump sum.
7.1 We retain title to the delivered Goods until full payment of all our present 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 neither be pledged nor transferred by way of security to third parties before full payment of the secured claims. The Buyer must notify 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., by attachment). If the third party is unable to reimburse us for judicial and extrajudicial costs of an action pursuant to § 771 German Code of Civil Procedure (ZPO), the Buyer shall be liable for the loss incurred by us.
7.3 In the event of breach of contract by the Buyer, particularly non-payment of the due purchase price, we are entitled to withdraw from the contract and/or demand return of the Goods on the basis of retention of title in accordance with statutory provisions. The demand for return does not simultaneously constitute a declaration of withdrawal; we are entitled to demand only the return of the Goods and reserve the right of withdrawal. If the Buyer does not pay the due purchase price, we may only assert these rights after having unsuccessfully set the Buyer a reasonable deadline for payment, unless such deadline is dispensable under statutory provisions.
7.4 Until revoked, the Buyer is authorized to resell and/or process the Goods subject to retention of title in the ordinary course of business. In this case, the following provisions apply additionally:
7.5 As long as title has not passed to the Buyer, the Buyer is obliged to treat the Goods with care. In particular, the Buyer is obliged to adequately insure the Goods at its own expense against theft, fire, and water damage at replacement value (only permissible for high-value goods). If maintenance and inspection work is required, the Buyer must carry it out in good time at its own expense.
8.1 The statutory provisions apply to the Buyer’s rights in the event of material and legal defects (including wrong delivery, short delivery, improper assembly/installation, or defective instructions), unless otherwise provided below. Statutory provisions on consumer goods purchases (§§ 474 et seq. BGB) and rights arising from separately issued guarantees, especially manufacturer guarantees, remain unaffected.
8.2 Agreements on the quality and intended use of the Goods (including accessories and instructions) form the basis of our liability for defects. All product descriptions and manufacturer information that are the subject of the individual contract or were publicly announced by us (especially in catalogs or on our website) at the time of conclusion of the contract are deemed quality agreements. If no quality has been agreed, whether a defect exists shall be assessed according to § 434 para. 3 BGB. Public statements by the manufacturer take precedence over statements by other third parties.
8.3 For Goods with digital elements or other digital content, we are only obliged to provide and update the digital content if this is expressly stated in a quality agreement pursuant to clause 8.2. We assume no liability for public statements by the manufacturer or other third parties.
8.4 We are not liable for defects that the Buyer knew or was grossly negligent in not knowing at the time of conclusion of the contract (§ 442 BGB).
8.5 Claims for defects by the Buyer presuppose that the Buyer has complied with its statutory duties of inspection and notification (§§ 377, 381 HGB). For building materials or other goods intended for installation or further processing, inspection must be carried out immediately before processing. If a defect becomes apparent upon delivery, inspection, or at a later point in time, we must be notified in writing without delay. Obvious defects must be notified in writing within [ ] working days of delivery, and defects not recognizable within the same period from discovery. If the Buyer fails to properly inspect and/or notify defects, our liability for the defect not notified, not notified in time, or not properly notified is excluded under statutory provisions. This also applies if the defect only became apparent after processing/installation due to breach of these obligations – in such cases, the Buyer has no claim for reimbursement of removal and installation costs.
8.6 If the delivered Goods are defective, we have the right to choose whether to provide subsequent performance by remedying the defect (repair) or by delivering a defect-free item (replacement). If the chosen type of subsequent performance is unreasonable for the Buyer in the individual case, the Buyer may reject it. We reserve the right to refuse subsequent performance under statutory conditions. We may also make subsequent performance conditional upon the Buyer paying the due purchase price; however, the Buyer may retain a reasonable part of the purchase price proportionate to the defect.
8.7 The Buyer must give us the necessary time and opportunity to carry out subsequent performance, in particular by handing over the defective item for inspection. In the case of replacement delivery, the Buyer must return the defective item in accordance with statutory provisions. Subsequent performance does not include removal, dismantling, or deinstallation of the defective item nor installation or fitting of the replacement item unless we have contractually undertaken to do so. Claims for reimbursement of removal/installation costs remain unaffected.
8.8 We bear or reimburse the expenses necessary for testing and subsequent performance (including transport, labor, material, and possibly removal/installation costs) in accordance with statutory provisions and these GTCS if a defect actually exists. Otherwise, we may demand reimbursement from the Buyer of costs incurred due to an unjustified request for defect rectification if the Buyer knew or could have recognized that no defect existed.
8.9 In urgent cases (e.g., danger to operational safety or to prevent disproportionate damage), the Buyer has the right to remedy the defect itself and demand reimbursement of the objectively necessary expenses. The Buyer must inform us immediately of any such self-remedy. The right to self-remedy does not exist if we would be entitled to refuse subsequent performance under statutory provisions.
8.10 If a reasonable deadline set by the Buyer for subsequent performance expires unsuccessfully or is dispensable under statutory provisions, the Buyer may withdraw from the contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
8.11 Claims of the Buyer for reimbursement of expenses pursuant to § 445a para. 1 BGB are excluded unless the last contract in the supply chain is a consumer goods purchase (§§ 478, 474 BGB) or a consumer contract for the provision of digital products (§§ 445c sentence 2, 327 para. 5, 327u BGB).
8.12 Claims for damages or reimbursement of futile expenses (§ 284 BGB) exist even in the case of defects only in accordance with clauses 9 and 10.
**9. Limitation Period**
9.1 Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material and legal defects is one year from delivery. If acceptance has been agreed, the limitation period begins with acceptance.
9.2 For building materials or items used for a building according to their normal use and which caused its defectiveness, the limitation period is 5 years from delivery (§ 438 para. 1 no. 2 BGB), subject to further statutory special limitation provisions (§§ 438 para. 1 no. 1, para. 3, 444, 445b BGB).
9.3 The above limitation periods also apply to contractual and non-contractual claims for damages based on a defect, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter period in individual cases. Claims for damages under clause 10.1 and 10.2(a) and claims under the Product Liability Act are subject exclusively to statutory limitation periods.
10.1 Unless otherwise provided in these GTCS, we are liable for breaches of contractual and non-contractual obligations in accordance with statutory provisions.
10.2 We are liable for damages – regardless of the legal basis – within the scope of fault-based liability only in the event of intent or gross negligence. In the case of simple negligence, subject to statutory limitations of liability, we are liable only:
10.3 The limitations of liability resulting from clause 10.2 also apply to third parties and to breaches of duty by persons whose fault we are responsible for under statutory provisions. They do not apply if a defect has been fraudulently concealed or a guarantee for the quality of the Goods has been assumed, nor to claims under the Product Liability Act.
10.4 The Buyer may only withdraw or terminate due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty.
10.5 A right of termination of the Buyer (in particular pursuant to §§ 650, 648 BGB) is excluded. Otherwise, statutory requirements and legal consequences apply.
11.1 These GTCS and the contractual relationship between us and the Buyer are governed by the law of the Federal Republic of Germany, excluding 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, a legal entity under public law, or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our place of business in [ ]. The same applies if the Buyer is an entrepreneur within the meaning of § 14 BGB.
11.3 We are also entitled to bring an action at the place of performance of the delivery obligation or at the Buyer’s general place of jurisdiction. Mandatory statutory provisions, in particular on exclusive jurisdiction, remain unaffected.
