§ 1 Scope of application
These terms and conditions of sale apply exclusively to companies, legal entities under public law or special funds under public law within the meaning of § 310 paragraph 1 BGB (German Civil Code). Our GTC shall apply exclusively. Any diverging, conflicting or additional general terms and conditions of the purchaser will only become a part of the contract if and in so far as we have expressly given our consent to the application thereof. The aforementioned consent is required in any case, also if, for example, we, having knowledge of the purchaser’s general terms and conditions, effect delivery to the purchaser without reservation.
These Terms and Conditions of Sale shall also apply to all future transactions with the customer, insofar as these are legal transactions of a related nature.
Individual agreements made with the Purchaser in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these Terms of Sale. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
§ 2 Offer and conclusion of contract
If an order is to be regarded as an offer in accordance with § 145 BGB, we can accept it within two weeks of receipt thereof by us. Acceptance of the offer may be declared either in writing (e.g. by confirmation of order) or by delivery of the goods to the purchaser.
§ 3 Provided documents
We reserve the property rights and copyrights to all documents provided to the purchaser in connection with the placing of the order - including in electronic form - such as calculations, drawings etc. These documents may not be made available to third parties unless we give the customer our express written consent. Insofar as we do not accept the customer's offer within the period of § 2, these documents must be returned to us immediately.
§ 4 Prices and payment
Unless otherwise agreed in writing, our prices are in Euro ex works (INCOTERM 20202) and exclusive of value-added tax at the current rate.
Payment of the purchase price must be made exclusively to the account named overleaf. The deduction of a discount is only permissible if a special written agreement has been made.
Unless otherwise agreed, the purchase price shall be paid within 14 days after delivery. Interest on arrears shall be charged at a rate of 9 percentage points above the respective base interest rate p.a. We reserve the right to assert higher damages caused by default.
Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries that take place 3 months or more after conclusion of the contract.
§ 5 Rights of Retention
The customer is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 6 Delivery time
The beginning of the delivery time stated by us presupposes the timely and proper fulfilment of the obligations of the purchaser. We reserve the right to raise the defence of non-performance of the contract.
If the customer is in default of acceptance or if he culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage incurred by us in this respect, including any additional reasonable expenses. We reserve the right to make further claims. Insofar as the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased goods shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor's delay.
In the event of a delay in delivery not caused by us intentionally or through gross negligence, we shall be liable for each completed week of delay within the scope of a lump-sum compensation for delay in the amount of 2 % of the delivery value, but in total not more than 8% of the delivery value.
Further legal claims and rights of the customer due to a delay in delivery remain unaffected.
§ 7 Transfer of risk on dispatch
If the goods are physically shipped to the customer at the latter's request, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon dispatch to the customer, at the latest upon leaving the factory/warehouse. This applies regardless of whether the goods are dispatched from the place of performance or who bears the freight costs.
§ 8 Retention of title
We reserve the right of ownership of the delivered item until all claims arising from the delivery contract have been paid in full. This also applies to all future deliveries, even if we do not always expressly refer to this. We shall be entitled to take back the purchased item if the customer acts in serious breach of contract.
As long as the ownership has not yet been transferred to the customer, the customer is obliged to treat the purchased item with care. If maintenance and inspection work has to be carried out, the customer must carry this out in good time at his own expense. As long as ownership has not yet been transferred, the customer must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of a lawsuit in accordance with § 771 ZPO (German Code of Civile Procedure) , the customer shall be liable for the loss incurred by us.
The treatment, processing or transformation of the purchased item by the customer is always carried out in our name and on our behalf. In this case, the expectant right of the customer to the purchased item shall continue in the transformed item. If the purchased item is processed with other objects not belonging to us, we shall acquire co-ownership of the new item in the ratio of the objective value of our purchased item to the other processed objects at the time of processing. We undertake to release the securities to which we are entitled at the request of the purchaser if their value exceeds the claims to be secured by more than 20%.
§ 9 Warranty and notice of defects as well as recourse/manufacturer recourse
Warranty rights of the customer presuppose that he has properly fulfilled his obligations to inspect and complain in accordance with § 377 HGB (German Commercial Code).
Warranty claims shall become statute-barred 12 months after delivery of the goods delivered by us to our customer. The statutory period of limitation shall apply to claims for damages in the case of intent and gross negligence based on an intentional or negligent breach of duty by the user.
If, despite all the care taken, the delivered goods show a defect which was already present at the time of the transfer of risk, we shall, subject to timely notification of defects, either repair the goods or deliver replacement goods at our discretion. We must always be given the opportunity for subsequent performance within a reasonable period. Recourse claims shall remain unaffected by the above provision without restriction.
If the subsequent performance fails, the customer may - without prejudice to any claims for damages - withdraw from the contract or reduce the remuneration.
There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, of only minor impairment of usefulness. If improper repair work or modifications are carried out by the customer or third parties, no claims for defects shall exist for these and the consequences thereof.
Recourse claims of the purchaser against us shall only exist insofar as the purchaser has not made any agreements with his customer that go beyond the legally binding claims for defects. Furthermore, paragraph 6 applies accordingly to the scope of the customer's right of recourse against the supplier.
§ 10 Other liability
(1) Unless otherwise provided for in these GTC, including the following provisions, we will be liable according to statutory regulations in the event of breach of contractual and non-contractual duties.
(2) We will be liable for damages under liability for fault – on whatever legal ground – in the case of intent and gross negligence. In the case of simple negligence, we will only be liable – subject to statutory limitations of liability (e.g. care in one’s own matters; insignificant breach of duty) –
a) for any damage resulting from injury to life, body or health,
b) for any damage resulting from breach of a material contractual duty (an obligation the fulfilment of which makes the proper performance of the contract possible at all and on the performance of which the other party to the contract regularly relies and may rely); in that case, our liability shall, however, be limited to compensation for the foreseeable damage that may typically occur.
(3) The limitations of liability specified in paragraph 10 (2) shall also apply in the case of breaches of duty by or for the benefit of persons for whose fault we are responsible according to statutory regulations. They shall not apply in so far as we have maliciously concealed a defect or given a guarantee as to the condition of the Goods as well as to the purchaser’s claims under the German Product Liability Act.
(4) The purchaser may only rescind or terminate the contract because of a breach of duty that does not consist in a defect if we are responsible for the breach of duty. A free right of termination on the part of the purchaser (especially pursuant to Sections 650, 648 of the German Civil Code) shall be excluded. Otherwise, the legal requirements and legal consequences shall apply.
§ 11 Software/rights of use
(1) In so far as the Goods include software (firmware) or software is sold and nothing to the contrary has been agreed in our offer, the purchaser shall be granted a non-exclusive, personal right of use (license) in the software acquired in the individual case in the edition supplied as ordered within the limits of these provisions upon payment of the agreed remuneration in full. The purchaser shall be obliged to use the software only for its own purposes.
(2) The purchaser shall only be entitled to copy the software to the extent that copying is required for use of the software in conformity with the contract. The purchaser may therefore install the software in order to use it.
(3) The purchaser may otherwise not copy the software or components thereof. The purchaser may not distribute the software or components thereof for business purposes or grant sublicenses in this regard.
(4) The purchaser may not alter, remove or otherwise obliterate copyright notices, trademarks and other reservations of rights, serial numbers or other features included in the software.
(5) The purchaser may not alter the software. A recompilation of the software (decompilation) shall only be permitted subject to the legal restrictions pursuant to Section 69 e of the German Copyright Act. Any further decompilation beyond the foregoing shall be excluded.
(6) The purchaser shall not be entitled to make the software available to third parties or pass it on to third parties. Likewise, the purchaser may not pass on to third parties any passwords or access codes for the software or database access that are connected with the software. If a third party is interested in the software, it may contact the licenser directly.
§ 12 Force majeure and the like
(1) We will not be liable for damage or for the failure to fulfil obligations under this contract in whole or in part if the relevant damage or the non-fulfilment is based on a circumstance that was not foreseeable at the time when the contract was concluded and we can neither prevent these consequences nor remedy same through reasonable measures (“Force Majeure”).
(2) In any event, Force Majeure applies in the case of hostilities (irrespective of whether war has been declared), riots, explosions, fire, flood, earthquake, typhoon, contamination by ionising radiation and radioactivity, pandemics and epidemics and in the case of disputes under labour law, as a result of which operations cease completely or to a large extent, as well as in the case of actions, omissions or measures by a government or when complying with government requests and in the case of a breakdown of plants or parts thereof which serve to fulfil obligations under this contract. Supply difficulties and other defaults in performance on the part of our upstream suppliers shall only be deemed Force Majeure if, in turn, the upstream supplier is prevented from performing the service to be provided by it due to an event according to paragraph 12 (1).
(3) If Force Majeure occurs, the parties must inform each other thereof without delay and shall present detailed information, especially about the extent and – in so far as reasonably possible – the probable duration of Force Majeure, within fifteen (15) days. In the event that Force Majeure occurs, the Parties will come to an agreement about the further course of action.
§ 13 Miscellaneous
This contract and the entire legal relations between the parties are subject to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
If the purchaser 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 – also international – place of jurisdiction for all disputes directly or indirectly arising out of the contractual relationship shall be our place of business in Hamburg. The same shall apply analogously if the purchaser is an entrepreneur within the meaning of Section 14 of the German Civil Code. However, in all cases we will also be entitled to bring a claim at the place of performance of the supply obligation according to these CTS or to an individual agreement having precedence or at the place of general jurisdiction of the purchaser. Any overriding legal provisions, especially those regarding exclusive jurisdiction, shall remain unaffected.
All agreements made between the parties for the purpose of executing this contract are set out in writing in this contract.