GTSD
General Terms and Conditions of Sale and Delivery (GTSD)
§ 1 Scope, form
(1) These General Terms and Conditions of Sale and Terms and Conditions of Delivery (GTCS) apply to all our business relationships with our customers (“Customer”). The GTCS shall only apply if the Customer is an entrepreneur (§ 14 of the German Civil Code BGB), a legal entity under public law or a special fund under public law.
(2) The GTSD apply in particular to contracts for the sale and delivery of movable goods (“goods”), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 650 of the German Civil Code – BGB). In the absence of any deviating, supplementary or additional agreements, these GTCS shall apply mutatis mutandis to all other services rendered by us to the Buyer. Unless other-wise agreed, the GTCS in the version valid at the time of the order placed by the customer or in any case in the version last notified to the customer in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
(3) Our GTCS shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if the customer refers to its General terms and Conditions within the scope of the order and we do not expressly object to this.
(4) Individual agreements (e.g. framework supply agreements, quality assurance agreements) and details in our order confirmation take precedence over the GTCS. In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.
(5) Legally relevant declarations and notifications by the Purchaser with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing. Written form within the meaning of these GTCS includes written and text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in the event of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
(6) References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTCS.
§ 2 Conclusion of contract
(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the Purchaser with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which we re- serve property rights and copyrights.
(2) The order of the goods by the customer shall be deemed to be a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within three (3) weeks of its receipt by us.
(3) Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods or services to the customer.
§ 3 Delivery period and delay in delivery
(1) The delivery period shall be agreed individually or stated by us upon acceptance of the order. If this is not the case, the delivery period is approximately 4 weeks from the conclusion of the contract.
(2) If we determine that we cannot meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the goods or services), we will inform the customer of this immediately and, if possible, at the same time inform him of the expected new delivery deadline. If the goods or services are also not available within the new delivery period, we shall be entitled to with-draw from the contract in whole or in part; we shall immediately refund any consideration already paid by the customer. Non-availability of the goods or services shall be deemed to exist, for example, in the event of late delivery by our suppliers, if we have concluded a congruent hedging transaction, in the event of other disruptions in the supply chain, e.g. due to force majeure, or if we are not obliged to procure the goods or services in an individual case.
(3) The occurrence of our delay in delivery shall be determined at least in accordance with the statutory provisions. In any case, however, a reminder by the customer is required. If we are in default of delivery, the customer maydemand lump sum compensation for the damage caused by the delay. The lump sum compensation shall amount to 0.5% of the net price (delivery value) for each full calendar week of the delay, but in total not more than 5% of the delivery value of the goods delivered or services rendered late. We reserve the right to prove that the customer has suffered no damage at all or only significantly less damage than the above lump sum.
(4) The rights of the Purchaser pursuant to § 8 of these GTCS and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§ 4 Delivery, transfer of risk, acceptance, default of acceptance
(1) Delivery shall be ex warehouse (EXW), which is also the place of performance for the delivery and any subsequent performance. At the request and expense of the customer, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk in case of doubt. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance, unless otherwise agreed. Handover or acceptance shall be deemed to have taken place if the customer is in default of acceptance.
(3) If the customer is in default of acceptance, fails to cooperate or delays our delivery or service for other reasons for which the customer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we shall charge a lump sum compensation for each completed calendar week of delay in the amount of 0,5% of the net price (delivery value), but no more than a total of 5% of the delivery value of the goods received late. The proof of higher damages and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The customer shall be entitled to prove that we have not incurred any damage at all or only significantly less damage than the aforementioned lump sum.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory VAT.
(2) In the case of sale by delivery to a place other than the place of performance (§ 4 para. 1), the customer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the customer. If we do not invoice the transport costs actually incurred in the individual case, a flat rate for transport costs (excluding transport insurance) in the amount of EUR BETRAG shall be deemed to have been agreed. Any customs duties, fees, taxes and other public charges shall be borne by the customer.
(3) The purchase price is due and payable within 14 days from the date of invoice and delivery or acceptance of the goods (receipt of payment on our account). However, we are entitled at any time, also within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
(4) Upon expiry of the aforementioned payment deadline, the customer shall be in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial interest on arrears (§ 353 HGB) shall remain unaffected.
(5) The Purchaser shall only be entitled to rights of set-off or retention insofar as its claim has been legally established or is undisputed. In the event of defects in the delivery, the counter rights of the customer shall remain unaffected, in particular in accordance with § 7 para. 6 sentence 2 of these GTCS.
(6) If it becomes apparent after the conclusion of the contract (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardized by the purchaser’s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.
§ 6 Retention of title
(1) We retain title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
(2) The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The customer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the goods belonging to us.
(3) In the event of breach of contract by the customer, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions or/and to demand surrender of the goods on the basis of the reservation of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
(4) Until revoked in accordance with No. 3 below, the purchaser 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 shall apply in addition.
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The retention of title extends to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we are deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.
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The customer hereby assigns to us by way of security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the purchaser stated in paragraph 2 shall also apply in respect of the assigned claims.
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The customer remains authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the customer meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right in accordance with paragraph. 3. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we shall be entitled to revoke the authorization of the customer to further sell and process the goods subject to retention of title.
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If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the request of the purchaser.
§ 7 Claims for defects of the orderer
(1) The statutory provisions shall apply to the rights of the Purchaser in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly/installation or defective instructions), unless otherwise stipulated below. In all cases, the statutory provisions on the sale of consumer goods (§§ 474 et seq. BGB) and the rights of the purchaser arising from separately issued guarantees, in particular on the part of the manufacturer, shall remain unaffected.
(2) The basis of our liability for defects is primarily the agreement reached on the quality and the presumed use of the goods (including accessories and instructions). All product descriptions and manufacturer’s specifications which are the subject of the individual contract or which were publicly announced by us (in particular in catalogues or on our Internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on quality in this sense. Insofar as the quality has not been agreed, it is to be assessed according to the statutory regulation whether a defect exists or not (§ 434 para. 3 BGB). Public statements made by the manufacturer or on its behalf, in particular in advertising or on the label of the goods, take precedence over statements made by other third parties.
(3) In the case of goods with digital elements or other digital content, we only owe provision and, if applicable, updating of the digital content insofar as this expressly results from a quality agreement in accordance with para. 2. In this respect, we do not assume any liability for public statements made by the manufacturer and other third parties.
(4) As a matter of principle, we shall not be liable for defects of which the orderer is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 BGB). Furthermore, the purchaser’s claims for defects presuppose that he has complied with his statutory duties of inspection and notification (§§ 377, 381 HGB). In the case of goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent upon delivery, inspection or at any later time, we must be notified thereof in writing without delay. In any case, obvious defects must be notified to us in writing within six (6) working days of delivery and defects which are not apparent upon inspection must be notified to us within the same period of time after discovery. If the purchaser fails to carry out the proper inspection and/or to give notice of defects, our liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions. In the case of goods intended for installation, attachment or installation, this shall also apply if the defect only became apparent after the corresponding processing as a result of the breach of one of these obligations; in this case, in particular, there shall be no claims by the Purchaser for reimbursement of corresponding costs (“removal and installation costs”).
(5) If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering an item free of defects (replacement). If the type of subsequent performance chosen by us is unreasonable for the customer in the individual case, the customer may reject it. Our right to refuse subsequent performance under the statutory conditions remains unaffected.
(6) We are entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer is entitled to retain a reasonable part of the purchase price in relation to the defect.
(7) The customer shall give us the time and opportunity necessary for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the customer shall return the defective item to us at our request in accordance with the statutory provisions; however, the customer shall not have a claim for return. Subsequent performance shall not include the dismantling, removal or disassembly of the defective item or the installation, fitting or assembly of a defectfree item if we were not originally obliged to perform these services; claims of the customer for reimbursement of corresponding costs (“dismantling and assembly costs”) shall remain unaffected.
(8) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, dismantling and installation costs, in accordance with the statutory provisions and these GTCS, if there is actually a defect. Otherwise, we may demand reimbursement from the Purchaser of the costs incurred as a result of the unjustified request to remedy the defect if the purchaser knew or could have known that there was actually no defect.
(9) In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the customer has the right to remedy the defect himself and to demand compensation from us for the expenses objectively necessary for this. We are to be informed immediately of such self-execution, if possible in advance. The right of self-execution does not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
(10) If a reasonable period to be set by the Purchaser for subsequent performance has expired unsuccessfully or is dispensable in accordance with the statutory provisions, the Purchaser may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions. In the case of an insignificant defect, however, there shall be no right of withdrawal.
(11) Claims of the purchaser for reimbursement of expenses pursuant to § 445a paragraph 1 BGB are excluded unless the last contract in the supply chain is a sale of consumer goods (§§ 478, 474 BGB) or a consumer contract for the provision of digital products (§§ 445c p. 2, 327 para. 5, 327u BGB). Claims of the customer for damages or reimbursement of futile expenses (§ 284 BGB) shall only exist in accordance with the following §§ 8 and 9, even if the goods are defective.
(12) Liability for material defects shall not apply if the customer modifies the goods or has them modified by third parties without our consent and the rectification of the defect becomes impossible or unreasonably difficult as a result. In any case, the purchaser shall bear the additional costs of remedying the defect resulting from the modification.
§ 8 Special provision in the event of the goods being handed over for testing
(1) If the goods are delivered – against payment or free of charge – in order to enable the purchaser, at the latter’s request, to examine and test them or to use them for tests, i.e. in particular in the case of test deliveries and the delivery of samples and prototypes, there shall in principle be no warranty.
(2) If the goods are provided on loan, i.e. free of charge and temporarily, §§ 599, 600 BGB apply. A permanent free transfer is generally out of the question. If this is nevertheless the case, §§ 523, 524 BGB apply.
(3) In the case of a chargeable permanent transfer, this is a contract of its own kind, in which the agreed remuneration is paid by the customer as compensation for the expenses incurred by us as a result of the fact that we make the goods available to the customer for indefinite inspection and testing for his own research and development purposes. In this case we are neither entitled nor obliged to take back the goods.
(4) If, in the course of further developments, we determine that the goods provided within the meaning of this provision have defects or no longer correspond to the current state of the art, we shall be entitled to exchange the provided goods for the current and at least equivalent and suitable product (right of exchange) and to make them available to the customer for further testing. We shall also and in particular be entitled to the right of exchange if we have further developed the goods provided within the meaning of this provision into a product which is ready for series production and which can be used beyond the trial period. The right of exchange shall end with the agreed end of the term in the case of temporary transfer, otherwise two (2) years after the first transfer for use, unless otherwise agreed between the parties.
(5) The customer shall treat all information provided to him by us within the scope of the items provided for testing and labelled as confidential as business secrets entrusted to him and shall not make them accessible to third parties or only make them accessible to those of his employees who need them for the intended purpose and who are obliged to maintain confidentiality even after their departure. The customer undertakes not to dismantle, disassemble or decompile the items handed over to him for testing or to examine their material and chemical composition unless we have given our prior written consent. If the Purchaser or one of its employees or any other person for whom the Purchaser is responsible pursuant to Sections 31, 278, 831 BGB breaches the obligations set out in this paragraph above, the parties agree that the Purchaser shall pay us a contractual penalty in an appropriate amount, whereby we shall determine the amount at our reasonable discretion within the meaning of Section 315 BGB and the appropriateness of the contractual penalty may be reviewed by the competent court at the request of the Purchaser in the event of a dispute. Further claims for damages remain unaffected, taking into account the contractual penalty.
§ 9 Other liability
(1) Insofar as nothing to the contrary arises from these GTCS including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
(2) We shall be liable for damages – irrespective of the legal grounds – within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), only
1. for damages resulting from injury to life, body or health,
2. for damages arising from the breach of an essential contractual obligation (obligation, the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from para. 2 shall also apply to third parties as well as to breaches of duty by persons (also in their favor) whose fault we are responsible for according to statutory provisions. They do not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the customer under the product liability act.
(4) The purchaser may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination on the part of the purchaser (in particular in accordance with §§ 650, 648 BGB) is excluded. In all other respects, the statutory prerequisites and legal consequences shall apply.
§ 10 Limitation
(1) Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall begin with acceptance.
(2) If the goods are a building or an object which has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory regulation (§ 438 para. 1 no. 2 BGB). Other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) shall also remain unaffected.
(3) The above limitation periods of the law on sales also apply to contractual and non-contractual claims for damages of the Purchaser based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. The purchaser’s claims for damages pursuant to § 8 para. 2 sentence 1 and sentence 2 no. 1 as well as pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
§ 11 Choice of law and place of jurisdiction
(1) These GTCS and the contractual relationship between us and the purchaser shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the customer 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 arising directly or indirectly from the contractual relationship shall be our registered office in Dresden. The same shall apply if the customer is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTCS or a prior individual agreement or at the general place of jurisdiction of the customer. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
