Sales Conditions
General Terms and Conditions of Sale and Delivery
I. General
1. These terms and conditions shall apply exclusively to the legal relationship between the supplier and the customer in connection with deliveries and/or services provided by the supplier (hereinafter referred to as deliveries), unless they are expressly amended or excluded in writing in an individual contract. These terms and conditions shall apply to all current and future deliveries. The customer's general terms and conditions shall only apply to the extent that the supplier has expressly agreed to them in writing.
2. the supplier expressly reserves all proprietary and intellectual property rights and rights of exploitation in respect of all cost estimates, planning documents or similar drawn up by the supplier in connection with offers or otherwise. The documents may only be made accessible to third parties with the prior written consent of the supplier. If an order is not placed within the set period of time by the supplier, such documents shall be returned to the supplier immediately upon request.
If the customer has provided the supplier with planning documents, drawings or similar, the supplier may, without the prior written consent of the customer, provide such documents to those persons whom the supplier uses for the purpose of manufacturing or performing the delivery.
Insofar as the supplier has carried out project planning or calculations as part of the deliveries to be provided by him, and insofar as he has created planning documents, drawings or similar in this context, the supplier assumes no liability for this. As agreed, such planning documents serve exclusively as a proposal and template for the engineering firm or specialist company commissioned with the project planning. The supplier and the customer agree that such documents do not constitute a contractually owed service.
II. Reservation and written form
Promises made by the supplier's sales representatives only become part of the contract if they are expressly confirmed by the supplier in the order confirmation. In this respect, the sales representatives are only authorised to make written promises - subject to the above reservation.
Any kind of verbal agreement and changes to the information in the order confirmation are only valid if they have been confirmed in writing by the supplier in the amended form.
III. Scope of delivery, partial deliveries and delivery period
1. The type and scope of delivery and a delivery period are only owed by the supplier to the extent that this is consistently apparent from the written offer on which the order is based and the supplier's order confirmation. The statements in section II. regarding the written form shall apply.
2. The supplier is entitled to make part deliveries, which may be invoiced separately, unless this cannot reasonably be expected of the customer.
3. The delivery period for ordered goods shall commence on the date of receipt by the customer of the binding order confirmations, provided that the customer does not request any changes after receipt of the order confirmation. If the customer requests changes, the deadlines shall only commence once the supplier has confirmed the changes requested by the customer in writing.
4. if the supplier sends the customer an order confirmation that differs from the order, the customer is obliged to confirm this amended order confirmation to the supplier in writing if it is accepted. In this case, the delivery period shall only commence once the supplier has received the written confirmation of the change to the order confirmation.
5. The delivery period shall be deemed to have been met if the ordered consignment has left the supplier's premises or his warehouse for shipment to the agreed location within the agreed delivery period. If dispatch is delayed for reasons for which the customer is responsible, notification of readiness for dispatch within the agreed delivery period shall suffice.
6. if the disregard of the periods on higher force as for example mobilisation, war, riot, or similar events as for example strike, lockout or on natural occurences to lead back, the periods extend appropriate. The same one is valid, if the supplier is supplied by his supplier not on time or properly or completely through no fault of one's own.
7. If the Supplier is responsible for the delay (hereinafter referred to as ‘Delay’) and the Purchaser has demonstrably suffered a loss therefrom, the Purchaser may claim a lump sum compensation as liquidated damages of 0.5 % for every completed week of Delay, but in no case more than a total of 5 % of the price of that part of the Supplies which due to the Delay could not be put to the intended use.
8. Both claims for damages by the customer due to delayed delivery and claims for damages in lieu of performance that exceed the limits specified in number 5 are excluded in all cases of delayed delivery, even after the expiry of any deadline set for the supplier. This does not apply in cases of mandatory liability due to intent, gross negligence or injury to life, limb or health.
9. The customer may only withdraw from the contract within the framework of the statutory provisions if the supplier is responsible for the delay in delivery. The above provisions do not imply a change in the burden of proof to the detriment of the customer.
10. At the supplier's request, the customer is obliged to declare within a reasonable period of time whether he will withdraw from the contract due to the delay in delivery or insist on delivery.
11. If shipment or delivery is delayed at the Purchaser's request by more than one month after notification of readiness for shipment, the Supplier may charge the Purchaser storage costs of 0.5% of the price of the items of the Supplies for each additional month or part thereof, but not more than a total of 5%, plus the applicable value added tax. The parties to the contract shall be free to prove higher or lower storage costs.
IV. Shipping and Transfer of Risk/Insurance
1. The risk shall pass to the customer even if carriage-paid delivery and delivery for inspection have been agreed:
a) for delivery without installation or assembly, when the consignment owed has left the supplier's premises or warehouse for shipment to the agreed location or when it has been handed over to the carrier;
b) for delivery with installation or assembly, on the day of acceptance at the customer's premises or, if agreed in writing, after a successful trial run and acceptance.
If the shipment, delivery, start or performance of the installation or assembly, the acceptance in the customer's own operations or the trial operation is delayed for reasons for which the customer is responsible, or if the customer delays acceptance for other reasons, the risk shall pass to the customer at the time the delay occurs.
2. transport insurance for lights and devices will generally be charged to the customer, unless otherwise agreed in writing. In the case of other deliveries, these will be insured by the supplier against the usual transport risks at the written request and expense of the customer.
3. the customer bears the risk of accidental loss or damage to the delivery from the moment it is handed over to the carrier. He shall also bear full responsibility for the proper and safe storage of the goods arriving at their destination. If the supplier still has to carry out assembly work or if the supplier has provided goods for inspection at the request of the customer, the customer shall likewise bear full responsibility for their proper and safe storage.
4. the supplier is entitled to charge the customer for the costs of extended breakage insurance, unless this has been expressly rejected by the customer in writing. This insurance supplements the transport insurance of the respective transport company, but does not restrict or replace it. In order to secure an asserted reservation of title or extended reservation of title, the supplier is entitled to insure the delivery item against fire, water and other damage from the transfer of risk at the expense of the customer, unless the customer can prove that he has already taken out such insurance.
5. If the supplier and the customer agree on individual contracts containing terms of delivery that differ from these terms and conditions (e.g. differing Incoterms), these terms and conditions shall continue to apply to the extent that the parties to the contract have not reached an agreement in the individual contractual terms of delivery that differs from these terms and conditions. If the customer has the right to instruct the supplier, when placing the order, to organise a transport that is carried out directly to the customer, excluding transhipment points, the customer shall bear the additional costs incurred as a result. If the customer has not indicated in writing the special necessity of a direct transport when placing the order, the supplier shall not be liable for any non-delivery or late delivery.
V. Retention of Title
1. The items pertaining to the Supplies (‘Retained Goods’) shall remain the Supplier's property until each and every claim the Supplier has against the Purchaser on account of the business connection has been fulfilled. If the combined value of the security interests of the Supplier exceeds the value of all secured claims by more than 10 %, the Supplier shall release a corresponding part of the security interest if so requested by the Purchaser; the Supplier shall be entitled to choose which of the security interests to release.
2. The customer is obliged to treat the reserved goods with care as long as ownership has not yet been transferred to him. In particular, he is obliged to insure them sufficiently at his own expense against theft, fire and water damage at replacement value. If maintenance and inspection work is required, the customer must have this carried out properly and in good time at his own expense.
3. For the duration of the retention of title, the Purchaser may not pledge the retained goods or use them as security, and resale shall be possible only for resellers in the ordinary course of their business and only on condition that the reseller receives payment from its customer or makes the transfer of property to the customer dependent upon the customer fulfilling its obligation to effect payment.
The customer hereby assigns to the supplier the customer's claims against the reseller arising from the resale of the reserved goods in the amount of the net invoice total agreed with the supplier plus the applicable statutory value added tax. This assignment applies regardless of whether the reserved goods have been resold without or after processing. The customer remains authorised to collect the claim against the reseller even after the assignment. The supplier's authority to collect the claim itself remains unaffected. The supplier and the customer agree that the supplier shall not collect the claim itself as long as the customer meets its payment obligations, is not in default of payment and, in particular, has not filed for bankruptcy or ceased payments.
4. the treatment and processing or transformation of the reserved goods by the customer is always carried out in the name of and on behalf of the supplier. In this case, the expectant right of the customer to the reserved goods continues in the transformed object. If the reserved goods are processed with other objects not belonging to the supplier, the supplier acquires co-ownership of the new object in the ratio of the objective value of the reserved goods to the other processed objects at the time of processing. In order to secure the claims of the Supplier against the Purchaser, the Purchaser shall also assign to the Supplier such claims as the Purchaser may have against a third party as a result of the combination of the reserved goods with a property. The Supplier hereby accepts this assignment.
5. In the event of attachments, seizures or other dispositions or interventions by third parties, the customer shall notify the supplier immediately. If the third party is unable to reimburse the supplier for the judicial and extrajudicial costs of a lawsuit in accordance with § 771 ZPO (German Code of Civil Procedure), the customer shall be liable for the loss incurred by the supplier in this respect.
6. If the Purchaser fails to fulfil its duties, including failure to make payments due, the Supplier shall be entitled, after having fixed an additional period of time of reasonable length for the Purchaser to perform its obligations and such additional period having expired to no avail, to withdraw from the contract and take back the goods. The statutory provisions that a time limit is not needed remain unaffected. The Purchaser is obliged to surrender the goods. The taking back of goods, the assertion of the reservation of title or the attachment of the goods subject to retention of title by the supplier does not constitute a cancellation of the contract, unless the supplier has expressly stated this.
VI. Prices, payment terms and offsetting
1. The prices stated in offers and price lists are generally non-binding. Only the prices specifically agreed at the time of the respective conclusion of the contract are decisive; the specific price agreement applies only to the respective order. Prices are ex works, excluding packaging, plus the respective applicable statutory value added tax.
2. If the supplier has taken on the installation or assembly and nothing else has been agreed, the customer shall bear all the necessary additional costs such as travel and transport costs, as well as allowances, in addition to the agreed remuneration.
3. Payments are to be made free of charge to the supplier's paying agent. Regardless of whether commissioning (installation, instruction, assembly, programming) has been agreed in addition to the ordered goods, the purchase price for the goods to be delivered shall be due in each case upon delivery within the meaning of Section III. of these Terms and Conditions or upon notification of readiness for dispatch (in accordance with Section IV. of these Terms and Conditions) of the ordered goods, with each partial delivery and upon presentation of a corresponding invoice.
4. The price agreed for commissioning shall be due upon completion of commissioning and the price for assembly upon acceptance by the customer, in each case upon presentation of a corresponding invoice.
5. If the supplier does not pay an invoice that is due within 30 days of the due date and receipt of the invoice or an equivalent payment schedule, he shall automatically be in default of payment. If the customer is a consumer, this consequence shall only occur if this legal consequence has been specifically pointed out in the invoice or payment schedule. If the time of receipt of the invoice or payment schedule is uncertain, the customer, who is not a consumer, shall be in default at the latest 30 days after the due date and receipt of the service.
6. the customer may only offset against such claims that are undisputed or have been legally established.
VII. Delivery for inspection/implied acceptance of contract
1. Each delivery for inspection, testing or temporary rental or loan shall simultaneously constitute an offer by the supplier to conclude a contract for the purchase of the delivery items.
2. If deliveries are provided to the customer for inspection, testing, rental or loan, the customer is obliged to insure the delivery against the usual risks (at least fire, water, theft) at his own expense for the entire duration of the provision. In addition, all provisions agreed for the reserved goods in accordance with Section V of this condition shall apply. In the event of non-acceptance of such deliveries or at the time of termination of the rental or loan, the customer shall return these to the supplier at his own expense and risk. If a period of transfer has not been specifically agreed, it shall be a maximum of four weeks from the transfer of risk in accordance with Section IV. of these conditions.
If the Supplier becomes aware of damage to or malfunctions in the returned delivery items, the Supplier shall be entitled to have the necessary maintenance and repair work carried out. The Supplier shall inform the Customer of such damage without delay on the day it is discovered. The Customer shall have the right to inspect the damage. In any case, the Purchaser shall reimburse the Supplier for the costs incurred by the Supplier plus the applicable statutory value added tax for the performance of the repair or maintenance work against invoicing.
3. If the Purchaser does not return the delivery in due time despite a written request from the Supplier setting a deadline of two weeks from the date of dispatch of the request, the Supplier shall no longer be obliged to take it back. The Supplier can only assert such a request for return after the expiry of the individual contractually agreed transfer period or after a maximum of four weeks from the transfer of risk in accordance with Section IV. By not returning the goods in due time, the Purchaser declares his intention to keep the delivery on the basis of the contract. In this case, the Supplier shall be entitled, after expiry of the deadline set by him, to invoice the Purchaser for the purchase price applicable at the Supplier's at the time of the ‘order for inspection’, plus the applicable statutory value added tax. The Supplier shall be obliged to expressly draw attention to this legal consequence in the letter of request setting the deadline for the return of the delivery.
VIII. Receipt/Packaging
1. The purchaser may not refuse to accept deliveries due to insignificant defects. The provisions of § 377 HGB (German Commercial Code) shall apply with regard to obvious defects. The supplier shall be notified in writing of any non-obvious defects immediately after their discovery.
2. The customer is obliged to assert any recognisable damage to the packaging in writing to the carrier. In addition, the customer is obliged to inform the supplier in writing of any recognisable damage to the packaging immediately on the day of acceptance. If the customer violates this obligation, claims by the customer against the supplier based on transport damage or damage to the packaging are excluded.
3. Unless otherwise agreed in writing, the Supplier shall charge the Purchaser for the transport packaging at cost price plus the applicable statutory value added tax. With regard to the whereabouts of the transport packaging, the provisions of the Packaging Ordinance in its currently valid version shall apply.
IX. Installation and assembly
Unless otherwise agreed in writing, the following provisions shall apply to installation and assembly:
1. The Purchaser shall provide at its own expense and in good time:
a) all earth and construction work and other ancillary work outside the industry, including the necessary skilled and unskilled labour, building materials and tools;
b) the objects and materials necessary for assembly and commissioning, such as scaffolding, lifting gear and other devices, fuels and lubricants;
c) energy and water at the point of use, including connections, heating and lighting;
d) suitable dry and lockable rooms of sufficient size adjacent to the site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the erection personnel, including sanitary facilities as are appropriate in the specific circumstances. Furthermore, the Purchaser shall protect the Supplier's property and the erection personnel on the site with the same degree of care it uses to protect its own property;
e) protective clothing and protective devices needed due to particular conditions prevailing on the specific site.
2. Before the start of the installation work, the customer shall provide the necessary information regarding the location of concealed electricity, gas and water lines or similar installations, as well as the necessary static information, without being asked.
3. Prior to the start of the installation or assembly, the provisions or objects required for the commencement of the work must be at the installation or assembly site and all preliminary work prior to the start of the construction must have progressed to such an extent that the installation or assembly can be started as agreed and carried out without interruption. Access routes and the installation or assembly site must be levelled and cleared.
4. Should the installation, assembly or commissioning be delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall bear the reasonable costs incurred for waiting time and any additional travelling of the Supplier or the assembly personnel.
5. The Purchaser shall attest to the hours worked by the assembly personnel towards the Supplier at weekly intervals and
of installation, assembly or commissioning without delay.
6. If the supplier requests acceptance of the delivery after completion, the customer shall carry this out within two weeks. If this does not happen, acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place if the delivery - if necessary after completion of an agreed test phase - has been put into use.
X. Defects
The supplier shall be liable as follows for defects notified in good time:
1. all parts or services showing a defect shall, at the supplier's sole discretion, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of the transfer of risk.
2. Claims for subsequent performance and claims for reimbursement of expenses in accordance with § 439 (2) and (3) BGB shall become time-barred 12 months after the statutory commencement of the limitation period. The same shall apply to withdrawal and reduction. This period shall not apply where longer periods are prescribed by law according to Sec. 438 para. 1 No. 2 (buildings and things used for a building), Sec. 479 para. 1 (right of recourse), and Sec. 634 a para. 1 No. 2 (defects of a building) German Civil Code (‘BGB’), in the case of intent, fraudulent concealment of the Defect or non-compliance with guaranteed characteristics (‘Beschaffenheitsgarantie’). The statutory provisions regarding the expiry, suspension and restarting of deadlines shall remain unaffected.
3. the customer shall submit complaints about defects in writing and without delay. Otherwise, the procedure according to section X.5. shall apply.
4. in the event of complaints about defects, the customer may only withhold payments to an extent that is in reasonable proportion to the purchase price and the material defect that has occurred. Furthermore, such a right of retention shall only exist if there can be no doubt about the justification of the notice of defect and the claims for defects are not time-barred. If, in connection with the investigation of raised notices of defects, measures that incur costs (such as expert opinions, etc.) are necessary, the supplier shall be entitled to demand that the customer reimburse these expenses if it turns out that the notice of defect was raised unjustifiably.
5. In any case, the supplier shall be given the opportunity to rectify the defect at his discretion within a reasonable period of time and to the extent of § 440 sentence 2 BGB.
The supplier and the customer agree on the following procedure for rectification:
a) The customer shall notify the supplier in writing (fax or e-mail is sufficient) of any non-functioning or malfunctioning of a delivery item immediately after it becomes known. This also applies in the event of the delivery item being resold.
b) The Supplier is entitled to inspect any functional faults in the delivery item on site. In the event of the delivery item being resold, the Purchaser shall, if necessary, endeavour to ensure that an inspection can also be carried out at the Purchaser's premises.
c) The Purchaser shall agree with the Supplier in advance any expenses incurred by the Purchaser in the course of subsequent performance, in particular installation and removal costs. The Supplier may demand that further offers be obtained. The Purchaser shall also examine and agree with the Supplier whether corresponding work can be carried out by the Supplier to the same extent and within the same period of time. Clauses X.8. and X.9. shall remain unaffected.
d) Before returning a delivery item that the Purchaser believes to be defective, the Purchaser must also request a so-called ‘RMA form’ from the Supplier.
e) The returned delivery item(s) must be listed in full on the ‘RMA form’. The delivery item must be returned to the Supplier in its original packaging, enclosing the ‘RMA form’.
The Supplier shall be entitled to return delivery items that are not sent in their original packaging and without being listed on the ‘RMA form’ at the expense of the Purchaser.
6. If the supplementary performance fails or if the Supplier definitively refuses the supplementary performance, the Purchaser may - without prejudice to any claims for damages in accordance with Section X.10. - withdraw from the contract or reduce the remuneration.
7. Claims for defects shall not arise in the event of only minor deviations from the agreed quality, only minor impairments of usability, natural wear and tear, or damage arising after the transfer of risk as a result of incorrect or negligent handling , excessive use, unsuitable operating materials, defective construction work, unsuitable building ground or which arise due to special external influences which are not assumed under the contract, as well as in the case of non-reproducible software errors. If the customer or third parties carry out improper modifications or commissioning work, there shall be no claims for defects for these and the resulting consequences either.
8. The supplier shall not be required to bear the costs of any expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs (Section 439 (2) BGB), insofar as the expenses increase because the object of the service has subsequently been taken to a location other than the customer's place of business, unless such transfer is in accordance with its intended use. Claims of the customer for reimbursement of the expenses incurred in the context of subsequent performance for the removal of a defective delivery item and the installation or attachment of a repaired or subsequently delivered defect-free delivery item (Section 439 (3) BGB) shall only exist insofar as the customer has installed or attached the delivery items in accordance with their nature and intended use. The first sentence shall apply accordingly. Section 442 (1) BGB shall apply with the proviso that the installation or attachment of the defective delivery item shall take the place of the conclusion of the contract with regard to the knowledge of the customer. The supplier may refuse subsequent performance or reimbursement of expenses in relation to companies if this is only possible at disproportionate cost. In relation to consumers, subsequent performance or reimbursement of expenses is only owed up to a reasonable amount if the costs of subsequent performance are disproportionate.
9. The Purchaser's rights of recourse against the Supplier pursuant to Section 445a BGB only exist if the defect asserted by the Purchaser was already present at the time of the transfer of risk to the Purchaser, and they are limited to the amount of the reimbursement of expenses that the Purchaser has to bear in relation to its customer in accordance with the statutory provisions. Furthermore, Section X.8. shall apply accordingly to the scope of a right of recourse of the Purchaser against the Supplier in accordance with Section 445a BGB. Furthermore, a right of recourse shall be excluded if the Purchaser fails to comply with its obligation to give notice of defects in accordance with Section 377 HGB. The Purchaser's right of recourse shall become time-barred upon expiry of the limitation period applicable according to Clause X.2. Section 445b (2) BGB shall remain unaffected.
10. Claims for damages by the Purchaser due to a defect in quality are excluded. This shall not apply to the extent that a defect is fraudulently concealed, the guaranteed characteristics are not complied with, in the case of loss of life, bodily injury or illness, impairment to health or loss of freedom, or intentional or grossly negligent breach of contract on the part of the Supplier, or due to breach of a fundamental condition of contract. However, a claim for damages due to the violation of essential contractual obligations is limited to the contractually typical, foreseeable damage, unless intent or gross negligence is present or due to injury to life, limb or health. A change in the burden of proof to the detriment of the purchaser is not associated with the above provisions. Further or other claims of the purchaser due to a material defect than those regulated in Section X. are excluded.
XI. Defects of Title, Industrial Property Rights and Copyrights
1. Unless otherwise agreed, the supplier is obliged to provide the delivery only in the country of the place of delivery free of industrial property rights and copyrights of third parties (hereinafter referred to as property rights). If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR by the Supplies made by the Supplier and used in conformity with the contract, the Supplier shall be liable to the Purchaser within the time period stipulated in No. X.2. as follows:
a) The Supplier shall choose whether to acquire, at its own expense, the right to use the IPR with respect to the Supplies concerned or whether to modify the Supplies such that they no longer infringe the IPR or replace them. If this is not possible for the Supplier under reasonable conditions, the Customer shall be entitled to the statutory rights of withdrawal and reduction.
b) The Supplier's obligation to pay damages shall be governed by Section XIII.
c) The above obligations of the Supplier shall only apply if the Customer immediately notifies the Supplier in writing of the claims asserted by the third party, does not acknowledge an infringement and reserves all rights to the Supplier with regard to defence measures and settlement negotiations. If the Purchaser stops using the delivery in order to mitigate damages or for other good cause, it shall be obliged to point out to the third party that the cessation of use does not constitute any acknowledgement of an infringement of property rights.
2. Claims of the Purchaser shall be excluded if it is responsible for the infringement of property rights.
3. Claims by the customer are also excluded if the infringement of the property right is caused by special instructions from the customer, by a use not foreseeable by the supplier or by the delivery being changed by the customer or used together with products not supplied by the supplier.
4. In the event of property right infringements, the claims of the customer regulated in this clause under 1. a) shall apply. Otherwise, the provisions of sections X.4., X.5. and X.9. shall apply accordingly.
5. In the event of other defects of title, the provisions of section X. shall apply accordingly.
6. Further claims or claims other than those regulated in this section XI. of the customer against the supplier and his agents due to a defect of title are excluded.
XII. Impossibility; contract adjustment; return
1. If delivery is impossible, the customer can only demand compensation if the supplier is responsible for the impossibility. However, the claim for damages is limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence or liability for injury to life, limb or health. This does not imply a change in the burden of proof to the detriment of the customer. The customer's right to withdraw from the contract remains unaffected.
2. If unforeseen events within the meaning of Section III.4. significantly change the economic significance or the content of the delivery or have a significant effect on the supplier's operations, the contract will be adapted appropriately in good faith. If this is not economically justifiable, the supplier has the right to withdraw from the contract. If the supplier intends to exercise this right of withdrawal, the supplier shall notify the customer of this without delay after becoming aware of the consequences of the event, even if an extension of the delivery time had initially been agreed with the customer.
3. The supplier reserves the right to charge a restocking fee of at least 25% of the contractually owed equivalent value of the delivery item for taking back and storing delivery items as a gesture of goodwill.
4. The following are excluded from a return as a gesture of goodwill: items subject to wear and tear, software, lamps, emergency exit signs and discs, batteries, custom-made products, as well as other goods that were delivered more than three months previously and for which a defect was not claimed immediately after delivery.
XIII. Other claims for damages
1. Other claims for damages by the customer, regardless of the legal basis, in particular due to breach of duties arising from the obligation and from unauthorised action, are excluded.
2. This does not apply if liability is mandatory, e.g. under the Product Liability Act, in cases of intent, gross negligence, due to injury to life, limb or health or due to the breach of essential contractual obligations. However, claims for damages arising from the breach of a material contractual obligation shall be limited to the foreseeable damage that is intrinsic to the contract, unless caused by intent or gross negligence or based on liability for loss of life, bodily injury or damage to health. The above provisions do not imply a change in the burden of proof to the detriment of the customer.
3. If the Purchaser is entitled to claims for damages, these shall become time-barred upon expiry of the limitation period applicable under Clause X.2. The same shall apply to claims of the Purchaser in connection with measures to avert damage (e.g. recall actions). In the case of claims for damages under the Product Liability Act, the statutory provisions regarding limitation periods shall apply.
XIV. Right to withdraw from the contract
The supplier is entitled to withdraw from the contract if, before the contract is executed, it becomes aware of circumstances that cast doubt on the creditworthiness of the customer, for this reason there is a serious risk to the claim for consideration, and the customer does not provide the supplier, upon request, with advance payment or other security in the amount of the value of the delivery within a reasonable period (at least 2 weeks).
XV. Place of Jurisdiction, Place of Performance, Applicable Law
1. The legal relationships in connection with this contract shall be governed by German substantive law, excluding the United Nations Convention on Contracts for the International Sale of Goods.
2. The place of performance for all deliveries and payments shall be the registered office of the Supplier at the time of the conclusion of the contract.
3. If the customer is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship – including actions on bills of exchange and cheques – shall be exclusively the court having jurisdiction for the registered office of the supplier at the time of the conclusion of the contract. For deliveries to member states of the European Union, the contracting parties undertake to agree individually on the supplier's place of business as the place of jurisdiction in accordance with the provisions of the EuGVVO. If no such agreement is expressly concluded, the place of jurisdiction shall be the registered office of the supplier as the place of performance within the meaning of Article 5 EuGVVO.
XVI. Final Clauses
Should individual clauses of these terms and conditions of sale and delivery or of the contract between the supplier and the customer be ineffective or unenforceable, or become ineffective or unenforceable after the contract has been concluded, the effectiveness of the contract and the remaining clauses of these terms and conditions of sale and delivery shall not be affected. The parties to the contract shall then replace the invalid or unenforceable provision with a provision that comes as close as possible to the meaning and purpose of the invalid or unenforceable provision.
Dinslaken 2023