§ 3 Payment, set-off and retention rights
(1) Unless agreed otherwise, all invoices shall be payable immediately without
discount.
(2) The Purchaser shall only be entitled to set-off if its counterclaims have
been determined res judicata or are uncontested. The Purchaser shall be entitled
to exercise a right of retention only to the extent that its counterclaim
is based on the same contractual relationship.
§ 4 Delivery in instalments
(1) We may deliver products in instalments if this is commercially reasonable
for the Purchaser. Rescission by the Purchaser of the entire contract for
partial default or partial impossibility shall only be admissible if the partial
performance rendered is provably of no interest for the Purchaser.
(2) Also with respect to agreed deadlines and dates, we shall not be responsible
for delays in delivery and performance due to force majeure. Events of force
majeure shall notably be war, riot, intervention by higher authority, measures
in the context of labour disputes, strike or lockout, shortage of raw materials
or energy and inevitable disturbances of transport, such as power outage,
fire, ingress of water or weather conditions affecting transport. This shall
also apply if the aforementioned conditions occur at vendors of ours or if
we are not supplied by them without fault, despite contracts that would have
covered the demand arisen due to the agreement with the Purchaser. In this
event we shall be entitled to postpone delivery or performance by the duration
of such disruption plus a reasonable start-up period or to rescind the contract
because of the part that has not been performed, either in its entirety or
in part. In the event that we rescind the contract either in its entirety
or in part because of events of force majeure, we undertake to inform the
Purchaser immediately of the fact that such performance is not available and
reimburse any remuneration already paid.
§ 5 Prices and shipping costs
(1) Unless agreed otherwise in writing, our prices shall be ex works plus
any-value-added tax incurring at the applicable rate.
(2) Shipping costs shall be borne by the Purchaser. In the event of delivery
in instalments, the Purchaser shall be obliged to pay shipping costs only
once.
(3) Unless a fixed price was agreed, we reserve the right to make adequate
price adjustments due to changed salaries, material and distribution costs
with respect to deliveries whose delivery time was specified by us to amount
to 4 months or more after conclusion of the contract.
§ 6 Transfer of risk at shipment
If the goods are shipped to the Purchaser at its request, the risk of accidental
loss or accidental deterioration of the goods shall pass to the Purchaser
upon dispatch, at the latest when the goods leave the facility/storage. This
shall apply regardless of whether the goods are shipped from the place of
performance or who bears the freight costs.
§ 7 Warranty and notification of defects
(1) A prerequisite for the assertion of warranty claims is that the Purchaser
has duly complied with its investigation and notification obligations pursuant
to Sec. 377 of the German Commercial Code [Handelsgesetzbuch - HGB].
(2) The statute of limitations with respect to warranty rights in the event
of sale of the goods shall amount to one year.
(3) If the delivery item is defective or becomes defective within the agreed
limitation period due to defects of workmanship or material, we shall –
at our option – either deliver a replacement or rectify the relevant
defect(s). Two attempts of subsequent performance are normally deemed acceptable
for the Purchaser. If rectification or substitute delivery after setting of
a reasonable deadline fail, the Purchaser may demand at its option, subject
to the statutory prerequisites being met, that either the purchase price be
reduced or the contract be rescinded.
(4) If the Purchaser demands replacement or rescinds the contract, it shall
determine defectiveness of the goods together with us in a meeting prior to
delivery of defect-free goods or, in the event of rescission, prior to rescinding
the purchase agreement.
(5) Rights of recourse of the Purchaser against us shall only exist to the
extent that the Purchaser has not made any agreements with its customer in
excess of the mandatory statutory warranty claims.
§ 8 Liability, damage compensation
(1) We shall be liable without restrictions for damage from injuries to the
life, limb or health due to a negligent breach of duty on our part and for
damage due to intentional or grossly negligent breach of duty on our part.
(2) In the event of slight negligence, we shall be liable only for claims
based on Sec. 311 Para. 2 of the German Civil Code [Bürgerliches Gesetzbuch]
and if we have violated a material contractual obligation (cardinal obligation).
In the event of violation of a material contractual obligation, we shall only
be liable for the typically foreseeable damage.
(3) The foregoing liability provisions shall also apply for our vicarious
agents [Erfüllungs- und Verrichtungsgehilfen].
§ 9 Retention of title
(1) The goods shall remain our property until paid in full.
(2) To the extent that we are entitled to recover goods with title reserved,
the Purchaser grants us and our obligees the irrevocable right to enter its
business premises at ordinary business hours, if necessary with vehicles,
in order to collect the goods with title reserved.
(3) In the event that the Purchaser is a qualified merchant [Kaufmann], the
reservation of title applies also for balance claims and for all claims we
may be entitled to, at present or in the future, against the Purchaser or
any of its affiliates for whatever reason.
(4) At the Purchaser’s request and at our option we shall release any
security provided on the basis of the retention of title to the extent that
the value of such security exceeds the claims by more than 20%.
§ 10 Applicable law, jurisdiction, severability
(1) The laws of the Federal Republic of Germany shall apply exclusively. The
United Nations Convention on the International Sale of Goods (UNCISG) of 11
April 1980, the Uniform Sales Code and the German Uniform Code on the Formation
of Contracts for the international Sale of Movable goods [Einheitliches Kaufabschlussgesetz
- EKAG] shall not apply.
(2) Berlin shall be the place of performance and the exclusive place of jurisdiction
for any disputes arising from contracts with merchants based on these General
Terms and Conditions of Business.
(3) Should any individual provision(s) of these General Terms and Conditions
of Business be void or invalid, the remaining provisions shall not be affected
thereby.
