General Payment and Delivery Conditions
The following terms and conditions apply to all our offers, sales, deliveries and services and form part of the contract in question. They do not apply if our contract partner is an individual and is not acting in a professional or commercial capacity. They also apply to all future business relations, even if they are not expressly agreed again.
We hereby explicitly reject deviating or supplementary general terms and conditions on the part of the buyer. They also do not apply even if the buyer has based his order or other assertion on them.
§2 Offers and Orders
Our offers are not binding unless they have been indicated in writing as binding. Therefore, a binding contract is only concluded on the production of our order confirmation or the delivery of the goods.
Dimensions, weights, illustrations, drawings and other documents, which form part of our non-binding offers, remain our property and are only approximate. They can only become the binding content of a contract through our express written confirmation.
§3 Doubtful Solvency
If after the conclusion of a contract we become aware of circumstances that give rise to doubts about the solvency of the buyer, we retain the right to make further deliveries dependent on pre-payment by the buyer. We have the right to give the buyer a reasonable period for the pre-payment of the goods and to rescind the contract if we do not receive the pre-payment on time: the buyer has the right to produce security in the form of a bank guarantee instead of the pre-payment. If we have already delivered the goods, the purchase price is payable in full immediately, regardless of agreed payment terms.
Among other things, doubts about the solvency of the buyer become justified if an application has been made to open insolvency proceedings against the buyer’s assets or if the buyer fails to make payments to us or third parties on time.
Our prices are “ex-works” unless otherwise agreed with the buyer. Packaging costs are not included in the price.
The statutory Value Added Tax is not included in our prices and will be shown separately on the invoice at the legally applicable rate on the date of the invoice.
If the period between the contract date and the date of delivery is more than four months and this is not due to a delay in delivery for which either party is as fault, and during which time our valid price list has changed, we have the right to demand the valid list price on the day of delivery in place of the agreed purchase price. We will send the buyer a duly amended order confirmation before delivery. In this case, the buyer has the right to cancel the order for the goods for which the price has been increased. The buyer must notify us of this cancellation in writing no later than the seventh working day after receipt of the amended order confirmation.
§5 Delivery Dates
All stated delivery dates are non-binding and are deemed to be agreed to be only approximate unless they are expressly designated by us as binding. In the case of non-binding delivery dates, delivery within 14 days after the stated delivery date is still deemed to be on time in every case.
If we are at fault in failing to meet an expressly agreed date or are in delay for other reasons, the buyer shall grant us a reasonable extension, which shall begin on the date of our knowledge of these circumstances. If this period expires without the agreed performance, the buyer is entitled to withdraw from the contract.
If, due to force majeure or other exceptional circumstances for which we are not at fault, or it is temporarily impossible or extremely difficult for us to provide the expected service in whole or in part, the agreed delivery date shall be extended for the duration of the impediment to delivery. The same applies to a date for the provision of an agreed performance, whether established by law or by the buyer, particularly if an extension has been granted in the case of a delay.
The buyer is not entitled either to withdraw from the contract or to damages before the expiry of the extended delivery date or deadline for performance under paragraph 3. If the impediment to performance lasts for more than twelve weeks, both we and the buyer are entitled to rescind the contract if the contract has still not been completed. If the buyer is contractually or legally entitled to withdraw without a grace period (e.g. because of loss of interest), this right remains unaffected.
Claims for damages of any kind for any possible delay in delivery are excluded, provided that the delay it is not due to intent or gross negligence.
Shipping is at the expense of the buyer. The risk shall transfer to the buyer when the goods are loaded, even if free delivery is agreed. We are not obliged to provide transport insurance.
Unless expressly agreed to the contrary in writing, we are entitled to make partial deliveries in reasonable amounts, which are calculated separately.
Our invoices are payable in full within 14 days of the invoice date. Individually agreed payment dates remain unaffected by this.
The buyer is in default if he fails to pay the purchase price within seven days after the due date and receipt of the invoice or an equivalent payment schedule, even if there is no reminder from us.
If the buyer is in default of a single payment, all of the buyer’s payment obligations under the business relationship with us – even those for which bills of exchange have been provided – become payable immediately. In this case, we are entitled to demand interest, at the level set by law, from the point in time in question. The seller reserves the right to prove greater damages.
Bills of exchange are only accepted for payment after prior agreement and if they are bankable without being subject to a discount. Also, payments by cheques/bills of exchange are only accepted for payment. The claim for the purchase price only expires after the bill of exchange is redeemed in full. Charges for bills of exchange and discounting will be charged separately and are payable immediately and in full.
Even if defects or counterclaims are notified, the buyer is only entitled to offset if the counterclaims have been legally established, recognized by the seller, or are undisputed. The buyer is only entitled to exercise a right of retention if the buyer’s counterclaim is based on the same purchase contract.
The buyer must examine the goods received for completeness, transport damage, obvious defects, condition and properties. The buyer must notify us in writing regarding obvious defects within ten working days of the delivery of the object of the contract.
We are not bound by the guarantee if the buyer has not notified us of an obvious defect within the time specified. If there is a defect in the goods for which we are responsible and the buyer has notified us of this in writing within the time specified, we are obliged to provide a remedy – thereby excluding the right of the buyer to withdraw from the contract or to reduce the purchase price – unless we are legally entitled to refuse to make a remedy. The buyer has to grant us a reasonable period of time to remedy each individual defect.
The remedy can take the form of the removal of the defect or the delivery of new goods, as desired by the buyer. We are entitled to reject the type of remedy chosen by the buyer if it incurs disproportionate costs. The buyer is not permitted to reduce the purchase price or to withdraw from the contract while the remedy is being affected. A remedy is deemed to have failed after the second unsuccessful attempt. If the remedy has failed or if the seller has completely refused a remedy, the buyer can, at his discretion, demand a reduction (decrease) of the purchase price or declare his withdrawal from the contract.
The buyer can only assert claims for damages due to defects under the following conditions if the remedy has failed or if the remedy has been refused by us. The buyer’s right to claim further damages under the following conditions remains unaffected.
We are fully liable under the statutory provisions for intentional or grossly negligent breaches of duty as well as for damages resulting from injury to life, limb, or health. Apart from that, we are only liable if the breach of duty under the contract is recognized as essential for the achievement of the contractual purpose, and limited to the amount of the typically foreseeable damage.
The limitation of liability referred to in paragraph 5 shall apply, with the necessary changes, to claims other than contractual claims for damages, in particular, tort claims, with the exception of claims under the German Product Liability Act [Produkthaftungsgesetz]. This also applies to our office staff, employees, co-workers, representatives and agents.
If we have granted a guarantee regarding the quality and/or durability of the goods or parts thereof, we shall also be liable under the terms of this guarantee. In the case of damages based on the lack of the guaranteed quality or durability, but which do not directly affect the goods, we are only liable if the risk of such damage is clearly covered by the quality and durability guarantee.
We are also liable for damages caused by simple negligence if this negligence concerns a breach of contractual obligations, which are essential for the fulfilment of the purpose of the contract (cardinal obligations). However, we are only liable if the damages are typically associated with the contract and foreseeable. Apart from that, we are not liable for simple negligent infringements of non-essential, secondary obligations. The limitations of liability specified in section 7 also apply to the extent that liability for legal representatives, executives and other agents of the seller is concerned.
Any further liability is excluded regardless of the legal nature of the asserted claim. If the liability of the seller is excluded or limited, this also applies to the personal liability of the seller’s office staff, employees, co-workers, representatives and agents.
§9 Retention of Title
The seller retains title to the purchased and delivered goods until full payment of all present and future claims under the purchase contract and an ongoing business relationship.
The buyer is not entitled to pledge the goods under retention of title to third parties or to assign them as security. However, the buyer is entitled to resell the reserved goods in the normal course of business. The buyer shall immediately assign the claims against his business partner arising from this to the seller. The seller will accept this assignment.
If the buyer behaves in a manner contrary to the contract, particularly in non-payment of the due purchase price, the seller is entitled under statutory provisions to rescind the contract on the grounds of the retention of title and the rescission. If the buyer fails to pay the purchase price, the seller is only permitted to assert these rights if he has previously granted the buyer a reasonable period for making the payment without success or if the setting of a deadline is legally unnecessary.
§10 Place of Fulfilment
The place of fulfilment for payments is Potsdam, Germany, the place of dispatch for our deliveries of goods.
§11 Data Processing
The buyer agrees that, in compliance with the German Federal Data Protection Act [Bundesdatenschutzgesetz], we process the data we receive about the buyer in connection with the business relationship for the fulfilment of our business purposes, and in particular that we store this data or transmit it to a credit protection agency, provided this is done in the context of the purpose of the contract or is required for maintaining our legitimate interests, and that there is no reason to believe that the legitimate interests of the buyer will be adversely affected by the processing, and particularly, the transmission, of these data.
§12 Jurisdiction and Applicable Law
The law of the Federal Republic of Germany shall apply exclusively to the contractual relationship between us and the buyer, even if the buyer has his residence or domicile outside of the Federal Republic of Germany. The application of the Uniform Law on the International Sale of Goods and the Law on the Conclusion of International Sales Contracts for Movable Goods is excluded.
The buyer is not entitled to assign claims from the purchase contract without the consent of the seller.
If the buyer is a registered business person, a legal entity under public law or a special fund under public law, the place of jurisdiction for both parties – also for litigation regarding bills of exchange and cheques – is Potsdam, Germany. However, we are also entitled to sue the buyer in the buyer’s general jurisdiction.
last update: 05/2018