General Terms and Conditions of Sale, Delivery and Payment of EUROPART Trading GmbH.
Hagen (as of May 2016)
1. Scope of application
(1) The following terms and conditions of sale, delivery and payment (hereinafter also referred to as: "GTC") shall apply exclusively to all our deliveries, services, offers, orders and order acceptances. These GTC shall apply for the duration of the entire business relationship. These GTC shall thus also apply to all future deliveries, services, offers, orders as well as order acceptances, even if we do not expressly refer to these GTC again in the future and these GTC are not separately agreed again.
(2) Deviating terms and conditions of the customer (hereinafter: "Buyer") which we do not expressly accept in writing shall not be binding on us, even if we do not expressly object to them or have not objected to them. These GTC shall apply in particular even if we carry out the delivery to the Buyer without reservation in the knowledge of terms and conditions of the Buyer that conflict with or deviate from these GTC or if we refer to a letter that contains or refers to general terms and conditions of the Buyer or a third party.
(3) These GTC shall only apply to our Buyers insofar as they are entrepreneurs (§ 14 BGB), legal entities under public law or special funds under public law pursuant to § 310 para. 1 BGB.
2. Conclusion of Contract
(1) Our offers are always subject to confirmation unless they are expressly designated as binding. This shall also apply if we provide the Buyer with documents such as catalogues, brochures, technical documentation (e.g. drawings, illustrations, plans, calculations, calculations, references to DIN standards) or other product descriptions (hereinafter also referred to as "Documents") - also in electronic form.
(2) The order of the goods by the Buyer shall be deemed to be a binding offer of contract. We shall be entitled to accept orders, contracts or other contractual offers of the Buyer within three weeks of their receipt. Acceptance of the contractual offer shall be declared by us in writing (e.g. by order confirmation, invoice or delivery bill) or by unconditional delivery of the goods to the Buyer. The Buyer shall be obliged to check all our confirmations of the conclusion of the contract for their factual correctness immediately after receipt.
(3) The scope of delivery shall be based on our written confirmation of the order. Deviations in dimensions, weight and/or number of items are permissible within customary tolerances. In the case of custom-made products, the delivered quantity may deviate from the ordered quantity by up to 10%.
(4) Any kind of description, weight and/or quantity data, namely in catalogues, price lists or in documents within the meaning of para. 1 are merely indicative or approximate values. They do not constitute binding quality specifications. Verbal statements on quality shall only be binding if they have been confirmed by us in writing.
(5) We reserve the right to make changes to the design and shape, deviations in colour and changes to the scope of delivery by the supplier, provided that the changes or deviations are reasonable for the Buyer, taking into account the justified interests of both parties to the contract. Insofar as we or the supplier use signs or numbers to designate the order or the object of purchase, no rights can be derived from this alone with regard to the specification of the object of purchase or the scope of delivery.
(6) The conclusion of the contract shall be subject to the proviso that we ourselves are supplied on time and in full. This shall apply solely in the event that we are not responsible for the non-delivery, in particular in the event of the conclusion of a congruent hedging transaction with our supplier. The Buyer will be informed immediately about the non-availability of the goods. The consideration will be refunded immediately, if applicable.
(7) We reserve the title and copyright to all offers and cost estimates submitted by us as well as to all documents within the meaning of para. 1 and other aids made available to the Buyer. The buyer may not make these documents accessible or known to third parties, use them himself or have them used by third parties, or reproduce them without our written consent, either as such or in terms of content. Upon our request, the Buyer shall immediately return these documents to us in their entirety and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
We reserve the property rights and copyrights to these documents. The Buyer may not make the documents accessible to third parties without our express consent.
3. Prices - Terms of payment - Rights in the event of default of payment by the Buyer
(1) Unless otherwise agreed in individual cases, our list prices current at the time of conclusion of the contract shall apply, ex delivery works or warehouse. The list prices do not include sales tax, packaging, freight, postage, customs duties, insurance and other shipping costs. If a freight/packaging-free delivery is promised, this shall only apply within the Federal Republic of Germany to the Buyer's receiving station, excluding cartage including our standard packaging. Additional costs due to a special type of shipment and packaging requested by the Buyer (e.g. express goods, express freight, air freight/seaworthy packaging, etc.) shall be borne by the Buyer.
(2) We reserve the right to reasonably change our prices for those parts of a total delivery which are scheduled for delivery after the expiry of four months after the conclusion of the contract if, between the conclusion of the contract and the scheduled delivery date, price changes of more than 5% for input material to be procured by us occur and these price changes affect the total cost of the goods. We shall prove this to the Buyer on request, taking into account the individual cost elements and their significance for the total price. In the event of a price increase of more than 5%, the Buyer shall be entitled to withdraw from the contract within two weeks of receipt of our notification to the extent that deliveries and services are still to be provided by us.
(3) Payment (net price plus statutory value added tax at the respective statutory rate) shall be made without deduction 14 days after the invoice date, unless a cash payment agreement exists with the Buyer, in which case the goods shall only be handed over against immediate payment. Decisive for the date of payment is the receipt of money by us. If the Buyer fails to make payment when due, interest shall be charged on the outstanding amounts from the due date at a rate of 9 percentage points above the respective base interest rate in accordance with § 247 of the German Civil Code (BGB). We reserve the right to assert further damage caused by default.
(4) The deduction of a discount shall require a special written agreement. Payment and discount periods granted by us shall commence on the invoice date. If the Buyer deducts a cash discount when paying invoices, the cash discount shall be added back accordingly when credit notes are offset. If a cash discount has been agreed, a cash discount deduction shall only be permissible if the Buyer has first fully met all other obligations towards us.
(5) If the Buyer is in default of payment, we shall be entitled to declare all claims due immediately. If the Buyer fails to pay due invoices, exceeds a granted term of payment, if the Buyer provides incorrect or incomplete information about his creditworthiness or if, after conclusion of the contract, we become aware of circumstances which call into question the Buyer's solvency or creditworthiness and which jeopardize the payment of our outstanding claims by the Buyer under the respective contractual relationship, we shall be entitled to perform or render outstanding deliveries or services only against advance payment or the provision of security, modifying the agreements made, and to declare the Buyer's entire existing residual debt immediately due and payable. If the Buyer refuses to make the advance payment or provide security, we may withdraw from the contract insofar as we have not yet performed our service, without the Buyerbeing able to derive any rights from this. We reserve the right to claim further damages. The Buyer shall be at liberty to provide evidence of lesser damage.
(6) If we withdraw from the contract due to a culpable breach of duty on the part of the Buyer, we shall be entitled to demand 10% of the order amount as lump-sum compensation without further proof; however, the lump-sum compensation shall be set off against further monetary claims as minimum damages. We reserve the right to prove higher damages as well as the right of the Buyer to prove that no damages or significantly lower damages have been incurred.
(7) The Buyer may only set off claims against our claims or assert a right of retention if his counterclaim is undisputed or has been finally determined by a court of law; the Buyer may otherwise only assert a right of retention insofar as it is based on claims arising from the purchase contract. Offsetting against claims of a group company of the Buyer shall be excluded in any case.
(8) We shall also be entitled, notwithstanding any provisions of the Buyer to the contrary, to first set off his payments against his older debts. If costs and interest have already been incurred, we shall be entitled to set off the Buyer's payments first against the costs, then against the interest and finally against the principal claim.
(9) We reserve the right to accept checks; they shall always be accepted only on account of performance, with all costs and expenses being charged and without any guarantee for timely presentation and protest. Any costs for return debit notes (e.g. for ec, bank or debit card payments) shall be reimbursed to us by the Buyer. If we participate in the SEPA Core Direct Debit Scheme, we shall notify the Buyer of the date and amount of the direct debit no later than 2 calendar days before the due date.
4. Delivery
(1) Deliveries shall be made ex works. At the Buyer's request and expense, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we shall be entitled in the case of a sale by delivery to a place other than the place of performance to determine the type of shipment (in particular transport company, shipping route, packaging) at our own dutiful discretion.
(2) Delivery times are always approximate. The delivery times, deadlines and dates stated by us are therefore non-binding unless expressly agreed otherwise in writing. Deadline days are always working days; Saturdays are not considered working days. Agreed delivery periods shall commence upon conclusion of the contract, but not prior to receipt of an agreed down payment; the same shall apply accordingly to changes in the delivery period. In the case of orders without assembly, the delivery period shall be deemed to have been complied with if the delivery item has left our works before its expiry. Otherwise, the delivery period shall be deemed to have been met if the Buyer has been notified that the goods are ready for dispatch.
(3) The start of the agreed delivery period is subject to clarification of all technical issues. A further prerequisite is the timely and proper fulfillment of contractual obligations by the Buyer. Thus, the delivery period shall commence at the earliest after receipt of all documents and materials to be provided by the Buyer for the execution of the order. If materials are provided by the Buyer, they shall be delivered to us in good time and in perfect condition at the Buyer's expense and risk with an appropriate quantity surcharge.
(4) In the event of collection by the Buyer or by the commissioned carrier, agreed deadlines must be met punctually. In the event of non-compliance with the collection date for goods notified as ready for dispatch, we shall be entitled to dispose of the material on the next day. The Buyer shall bear all costs arising from the delayed collection or provision of freight. If the delivery periods and dates agreed upon in the case of orders for the delivery of several partial quantities are not complied with by the Buyer, we shall be entitled, after setting a deadline to no avail, to deliver the remaining goods, to withdraw from the part of the order not yet completed or to claim damages for non-performance.
(5) Our obligation to deliver shall be suspended as long as the Buyer is not only insignificantly in arrears with an obligation. Any costs incurred by us as a result shall be borne by the Buyer. If the Buyer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled, without prejudice to further claims, to demand compensation for the damage incurred by us in this respect, including any additional expenses. We may - without prejudice to our rights arising from default on the part of the Buyer - demand from the Buyer an extension of delivery and performance periods or a postponement of delivery and performance dates at least by the period of time during which the Buyer fails to meet his contractual obligations towards us. We reserve the right to plead non-performance of the contract.
(6) We shall be entitled to make partial deliveries and to make deliveries within the agreed delivery and performance periods if
- the partial delivery is usable for the Buyer within the scope of the contractual purpose and
- the delivery of the remaining ordered goods is ensured and
- the Buyer does not incur any significant additional costs as a result (unless we declare our willingness to bear such costs).
(7) We shall not be liable for force majeure or other events beyond our control which were unforeseeable for us at the time of the conclusion of the contract and which temporarily prevent us or our supplier without any fault on our part (e.g. strike, lockout, interruption of operations, shortage of labor, weather conditions or traffic disruptions, difficulties or delays in the supply of raw materials, energy or machinery, war, acts of violence by third parties against persons or property or sovereign interventions or orders including monetary or trade policy measures). If such events temporarily prevent us from delivering the object of sale on the agreed date or within the agreed period, they shall release us from our obligation to deliver for the duration of the disruption - including during an already existing delay. This shall also apply if we do not receive the approvals of third parties required for the execution of deliveries in due time. In the event of obstacles of temporary duration, the delivery and performance deadlines shall be extended or postponed plus a reasonable start-up period. If such events make it impossible or substantially more difficult for us to deliver or perform and the hindrance is not only of temporary duration, i.e. of more than 120 days, the Buyer may withdraw from the contract. If the Buyer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by submitting a written declaration to us without delay.
(8) In any case, we shall be in default only upon written reminder after the due date. Otherwise, the occurrence of default in delivery shall be determined in accordance with the statutory provisions, unless otherwise stipulated above.
(9) If we are in default with a delivery or service or if a delivery or service becomes impossible, for whatever reason, our liability for damages shall be limited in accordance with § 4 para. 10, § 7.
(10) If we are in default of delivery, the Buyer may demand 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 late. We reserve the right to prove that the Buyer has not suffered any damage or that the damage is significantly less than the above lump sum.
5. Transfer of risk - packaging
(1) Our deliveries shall be EX WORKS - EXW (INCOTERMS 2010), unless otherwise agreed.
(2) If shipment of the goods has been agreed with the Buyer, the risk of accidental loss or accidental deterioration of the goods shall pass to the Buyer upon handover of the goods (whereby the beginning of the loading process shall be decisive) to the Buyer, the forwarder or carrier, but no later than upon leaving the factory or warehouse. Mode of dispatch, route and packaging shall be chosen at our discretion in the absence of written instructions from the Buyer. We shall only take out insurance against theft, breakage, transport, fire and water damage or other insurable risks at the request of and on behalf of the Buyer.
(3) Unless otherwise agreed, we shall not take back transport and other packaging, with the exception of loan packaging and pallets. The Buyer shall be responsible for the disposal of the packaging.
(4) Returnable packaging (transport boxes, pallets, etc.) are our inalienable property. They are to be returned freight prepaid no later than 30 days after delivery. If this is not done, we may charge for them at the current price of brand-new packaging or demand rental fees.
(5) If shipment is delayed due to circumstances for which the Buyer is responsible, the risk shall pass to the Buyer from the day on which the delivery item is ready for shipment and we have notified the Buyer of this. In this case, we are entitled to store the goods at our discretion at the expense and risk of the Buyer and to demand payment of the agreed price. We may charge a flat rate of 0.5 % of the invoice amount per month or part thereof for the costs, but not more than a total of 5 % of the invoice amount. The proof of higher damages and our legal claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; the lump-sum compensation shall, however, be set off against further monetary claims as minimum damages. The Buyer shall be entitled to prove that we have not suffered any damage at all or that the damage is significantly less than the aforementioned lump sum.
(6) Delivered items shall be accepted by the Buyer, even if they show minor defects, without prejudice to the rights under § 6. If the Buyer is in arrears with the acceptance of the object of purchase for more than 14 days from receipt of the notification of readiness for delivery due to intent or gross negligence, we shall be entitled to withdraw from the contract or to claim damages after setting a deadline of a further 14 days. The setting of a deadline is not required if the buyer seriously or finally refuses acceptance or is obviously unable to pay the purchase price even within this period.
6. Warranty
(1) The Buyer shall carefully inspect the goods delivered by us immediately after delivery to the Buyer or to the third party designated by the Buyer. The goods delivered by us shall be deemed to have been approved if we have not been notified in writing of a defect with regard to obvious defects or other defects which were apparent on immediate, prompt inspection within 7 working days of delivery of the goods or otherwise within 7 working days of discovery of the defect or any earlier point in time at which the defect was apparent to the Buyer on normal use of the goods without closer inspection. At our request, the goods complained about must be returned to us so that we can inspect them. If the notice of defect turns out to be unfounded, the buyer shall be obliged to reimburse us for the expenses incurred for the inspection, unless he is not responsible for the unfounded notice of defect. In the event of a justified notice of defect, we shall reimburse the costs of the most favorable shipping route. The latter shall not apply insofar as the costs increase because the goods are located at a place other than the place of intended use and disproportionate costs are incurred by us as a result.
(2) In the event of material defects in the goods delivered by us, we shall be obliged and entitled, at our option to be made within a reasonable period of time, first to remedy the defect (rectification) or to deliver a defect-free item (replacement delivery). Our right to refuse the chosen type of subsequent performance under the statutory conditions shall remain unaffected. The Buyer may only withdraw from the contract or reduce the purchase price appropriately if the subsequent performance has failed or a reasonable period to be set by the Buyer for the subsequent performance has expired unsuccessfully or is dispensable under the statutory provisions. Subsequent performance shall be deemed to have failed if two attempts at subsequent performance have been unsuccessful or if subsequent performance is impossible or unreasonable for the Buyer.
(3) The rights of the Buyer set forth in § 6 para. 1 and para. 2 shall be excluded in case of insignificant deviation from the agreed quality, in case of insignificant impairment of usability, in case of natural wear and tear or in case of damage occurring after the passing of risk due to faulty or negligent handling, excessive strain or due to special external influences not assumed under the contract. They are also excluded for defects resulting from documents (drawings, samples, etc.) submitted by the buyer, unless the defect is also due to circumstances for which we are responsible. This also applies in particular to the function of items manufactured according to the Buyer's design or design documents submitted by the Buyer.
(4) Claims of the Buyer for damages or reimbursement of futile expenses based on our fault shall only exist in accordance with § 7 and shall otherwise be excluded.
(5) Any delivery of used items agreed with the Buyer in individual cases shall be made to the exclusion of any warranty.
(6) The Buyer may not assign claims for defects.
(7) If a claim is made against the Buyer by a consumer or by way of recourse by an entrepreneur due to a defect in the goods, the Buyer must notify us immediately. Recourse against us shall only be possible to the extent that the Buyer is entitled to warranty claims for defects against us in consideration of these GTC. If a claim is made against the Buyer by his customer on the basis of provisions which deviate from the aforementioned warranty provisions, or if he takes back goods as a gesture of goodwill, these agreements shall apply exclusively in the relationship between the Buyer and his customer; recourse against us shall not be possible in this respect.
(8) In the case of overnight deliveries, the Buyer shall immediately inspect the relevant delivery of goods. Transport damage which can be detected during a proper inspection must be reported at the latest by 12:00 noon on the day of delivery or, if this is a Saturday or public holiday, by 12:00 noon on the next working day. For other defects, the aforementioned regulations according to para. 1 shall apply.
7. Liability
(1) Our liability for damages or futile expenses - irrespective of the legal grounds - shall only apply if the damage or the futile expenses
a) were caused by us or one of our vicarious agents through culpable breach of such an obligation, the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the Buyer may regularly rely (material contractual obligation), or
b) are due to a grossly negligent or intentional breach of duty by us or one of our vicarious agents.
In deviation from § 7 para. 1 a), we shall only be liable for damage or futile expenses caused by advice and/or information which is not to be remunerated separately in the event of intentional or grossly negligent breach of duty, insofar as this breach of duty does not constitute a material defect pursuant to §§ 434, 633 BGB of the goods delivered by us.
(2) If we are liable pursuant to § 7 para. 1 a) for the breach of an essential contractual obligation without gross negligence or intent, our liability for damages shall be limited to the foreseeable, typically occurring damage. In this case, we shall in particular not be liable for the Buyer's loss of profit which is not foreseeable and does not typically occur and not for indirect consequential damage which is not foreseeable. The above limitations of liability pursuant to sentences 1 and 2 shall apply in the same way to damages caused by gross negligence or intent on the part of our employees or agents, provided that they are not our managing directors or officers. We shall not be liable for indirect damages incurred by the Buyer due to the assertion of contractual penalty claims by third parties.
(3) Our liability for slight negligence shall be limited:
- in the case of property damage and financial loss covered by an insurance policy taken out by the Buyer, to the disadvantages associated with the Buyer's insurance claim;
- in terms of amount, for each case of damage to property up to an amount of € 200,000.00 and for financial loss up to an amount of € 50,000.00.
(4) The above limitations of liability set out in § 7 para. 1 to para. 3 shall not apply if our liability is mandatory under the provisions of the Product Liability Act or if claims are asserted against us based on injury to life, limb or health. If the goods delivered by us lack a guaranteed characteristic, we shall only be liable for such damages whose absence was the subject of the guarantee.
(5) Any further liability for damages other than that provided for in § 7 (1) to (4) shall be excluded, irrespective of the legal nature of the claim asserted. This shall also apply in particular to claims for damages arising from culpa in contrahendo pursuant to Section 311 (3) of the German Civil Code (BGB), positive breach of contract pursuant to Section 280 of the German Civil Code (BGB) or claims in tort pursuant to Section 823 of the German Civil Code (BGB).
(6) Insofar as our liability for damages vis-à-vis the Buyer is excluded or limited pursuant to § 7 paras. 1 to 5, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
8. Statute of limitations
(1) Claims of the Buyer based on material defects and defects of title in the goods delivered by us or based on services rendered by us in breach of duty - including claims for damages and claims for reimbursement of futile expenses - shall become statute-barred within one year from the statutory commencement of the limitation period, unless otherwise provided for in the following provisions.
(2) If, however, the goods are a building structure or an item that has been used for a building structure in accordance with its customary manner of use and has caused the defectiveness thereof, the limitation period shall be 5 years from delivery.
(3) The above provisions shall not apply to the limitation of claims based on injury to life, limb or health, nor to the limitation of claims under the Product Liability Act. Also unaffected are special statutory provisions for claims in rem for surrender of goods by third parties (§ 438 para. 1 no. 1 BGB), in the event of fraudulent intent on the part of the Seller (§ 438 para. 3 BGB) and for claims in supplier recourse in the event of final delivery to a consumer (§ 479 BGB). In the cases mentioned in this § 8 para. 3, the statutory limitation periods shall apply to the limitation of these claims.
9. Retention of Title
(1) We retain title to our goods (hereinafter referred to as "Retained Goods") until all present or future claims arising from the entire business relationship, including all ancillary claims, have been paid in full and until all checks have been cashed. This shall also apply if, in the case of a current account, the purchase price for certain deliveries of goods designated by the Buyer has been paid, since the reserved title serves as security for our balance claim.
(2) The Buyer shall be obliged to treat the reserved goods with care and to maintain them. Insofar as maintenance and inspection work is required, the Buyer must carry this out in good time at his own expense. In particular, the Buyer is obliged to insure the reserved goods at his own expense against loss, damage and destruction, e.g. against fire, water and theft damage, sufficiently at replacement value and to prove this to us upon request. The Buyer hereby assigns to us his claims arising from these insurance contracts. We accept this assignment.
(3) The Buyer may neither pledge nor assign by way of security the goods subject to retention of title which are our property. Access by third parties to our goods subject to retention of title or to a claim assigned to us, in particular seizures, must be notified to us by the Buyer in writing without delay. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action in accordance with § 771 ZPO (German Code of Civil Procedure), the Buyer shall be liable for the loss incurred by us.
(4) In the event of a breach of contract by the Buyer, in particular default of payment, we shall be entitled - after the unsuccessful expiry of a reasonable deadline set for the Buyer to perform and without prejudice to further (damage) claims to which we are entitled - to mark the reserved goods as our property or to have them marked as our property, to prohibit their further use as well as to withdraw from the contract and to take back the reserved goods. For this purpose, the buyer shall irrevocably grant us access to his business premises. The buyer is obliged to surrender the goods. The statutory provisions on the dispensability of setting a deadline shall remain unaffected. In the event of other breaches of duty, in particular those which endanger the existence of the reserved goods, we shall be entitled to demand repossession, even without withdrawing from the contract.
(5) After taking back the reserved goods, we shall be entitled to utilise them. The proceeds of the sale shall be credited against the Buyer's liabilities - less reasonable costs of sale. The utilisation costs shall generally amount to 10% of the utilisation proceeds, unless we prove higher costs or the Buyer proves lower costs.
(6) The Buyer shall be entitled to resell goods owned or co-owned by us in the ordinary course of his business. The aforementioned authorization shall not exist insofar as the Buyer has assigned or pledged the claim against his contractual partner arising from the resale of the goods - in each case effectively - to a third party in advance or has agreed a prohibition of assignment with such third party.
(7) Processing of the goods subject to retention of title by the Buyer shall be carried out on our behalf and shall always be carried out on our behalf without any obligation on our part. In the event of processing, combination or inseparable mixing of our reserved goods with other items not belonging to us, we shall acquire co-ownership of the newly created item in the ratio of the invoice value of the reserved goods to the other items at the time of processing, combination or mixing. The co-owned goods created thereafter shall be deemed to be goods subject to retention of title within the meaning of para. 1. Accordingly, the same shall apply to the item created by the processing, combination or mixing as to the goods subject to retention of title. If our ownership lapses as a result of combining or mixing, the Buyer hereby assigns to us the ownership rights to the new goods to which he is entitled to the extent of the invoice value of our goods and shall hold them in safe custody for us free of charge. The Buyer shall be entitled to dispose of the new products created by processing or transformation, combination or mixing in the ordinary course of business as long as he meets his obligations arising from the business relationship with us in due time. Under no circumstances, however, shall the Buyer be entitled to resell or otherwise dispose of such new products under agreement with his customer on a non-assignment clause, or to pledge or assign them as security. The Buyer hereby assigns to us by way of security his claims arising from the sale of these new products to which we have title to the extent of our ownership share in the goods sold. If the buyer combines the delivered goods with a main item, he hereby assigns to us his claims against the third party up to the value of the goods. To secure our claims against the Buyer, the Buyer also assigns to us such claims as accrue to him against a third party as a result of the combination of the goods subject to retention of title with a property. We hereby accept these above assignments in each case.
(8) In order to secure the fulfillment of all our claims referred to in § 9 para. 1, the Buyer hereby assigns to us all claims - including future and conditional claims - against his customers arising from the resale of the goods subject to retention of title together with all ancillary rights in the amount of the value of the delivered goods with priority over the remaining part of his claims. Insofar as we are only entitled to co-ownership of the sold goods, the buyer shall assign the claim in accordance with our co-ownership quotas. We hereby accept these above assignments in each case. If the Buyer so requests, we shall be obliged to release the securities to which we are entitled to the extent that their realisable value exceeds the value of our outstanding claims against the Buyer by more than 10%. We hereby declare the release of these securities. The selection of the securities to be released shall be incumbent upon us. The release shall be effected by transfer of title or reassignment.
(9) The Buyer shall remain authorised to collect the claims assigned to us in the ordinary course of business. However, the Buyer shall not be entitled to agree a current account relationship or a prohibition of assignment with his customers with regard to these claims or to assign or pledge them to third parties. Our authority to collect the claim ourselves shall remain unaffected by this. However, we undertake not to collect the claim as long as the Buyer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended. However, if this is the case, the Buyer shall, upon request, immediately send us a list of the claims assigned to us, stating the address of the customer and the amount of the claim. In addition, the Buyer shall be obliged, at our request, to notify the Buyer of the assignment and to provide us with the information required to assert our rights or to hand over the necessary documents.
(10) In the event of cessation of payments or over-indebtedness of the Buyer or in the event of an application for insolvency or composition proceedings against his assets, we shall be entitled, at our discretion, either to assert the above rights or to withdraw from the contract in accordance with the statutory provisions.
10 Return of goods
(1) The Buyer shall be entitled to return to us defect-free and clean goods purchased from us in their unopened original packaging at his expense if we agree to this. The Buyer shall have no legal claim to the return of defect-free goods. We do not need to give reasons why we refuse to agree to the return of the goods. Returns with a net value of less than 20 EUR (small parts, bulbs, etc.) and special orders are generally not taken back.
(2) We may make consent to the return of defect-free goods conditional on our inspecting the goods at the Buyer's expense. The required consent to take back the goods shall in particular not be considered if the goods contain wearing parts such as rubber, oils or greases which have a detrimental effect on the reusability of the goods. If we do not agree to take back the goods after inspecting them, we shall return the goods to the Buyer at the Buyer's expense.
(3) If the goods have been properly delivered by us according to the order and are returnable, the Buyer may, in exceptional cases requiring our express consent, receive a credit note up to the amount of the purchase price against return of the goods. Depending on the time of return (difference in days between purchase and notification of return), restocking fees of up to 20% of the net purchase price may apply, which will be deducted from the credit note.
11. Export control
If licenses are required for the export of our products, the buyer shall obtain them at his own expense and under his own responsibility. We shall not be liable in the event that a required license is not granted. If claims are asserted against us by third parties in the event of a violation of export regulations, the Buyer shall indemnify us against these costs as well as for the costs incurred in connection with the protection of our rights.
12. Final provisions
(1) The place of performance for all obligations arising from the contractual relationship shall be the registered office of our company in Hagen (Germany), unless expressly agreed otherwise. This shall also be the place of performance and delivery within the meaning of Art. 7 No. 1 lit. b) Brussels Ia Regulation.
(2) The exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be Hagen, insofar as the Buyer is a merchant, a legal entity under public law or a special fund under public law and no mandatory statutory provisions to the contrary exist. In the aforementioned cases, we shall also be entitled to sue the Buyer at his general place of jurisdiction.
(3) These General Terms and Conditions and the entire legal relationship between the Buyer and us shall be governed exclusively by the substantive law of the Federal Republic of Germany as it applies between German merchants. The provisions of the regulations on the international sale of goods (CISG - UN Sales Convention) shall not apply.
(4) Transfers of rights and obligations of the Buyer under the contract concluded with us shall require our written consent to be effective.
(5) Additions and amendments to the agreements made between the parties, including these General Terms and Conditions for the Supply of Goods, must be in writing in order to be effective. Transmission by fax and e-mail shall be sufficient to comply with the written form requirement.
(6) We store data of the Buyer within the scope of the mutual business relations in accordance with the provisions of the Federal Data Protection Act (BDSG).
(7) Should individual provisions of these General Terms and Conditions be invalid or unenforceable or contain a loophole, this shall not affect the validity of the remaining provisions. The invalid or impracticable or incomplete provision shall be replaced by a complete and permissible provision that comes as close as possible to what the parties would have agreed if they had known about the invalidity or impracticability or incompleteness of the provision.
General Terms and Conditions of Sale, Delivery and Payment of EUROPART Materials GmbH.
Hagen (as of May 2016)
1. Scope of application
(1) The following terms and conditions of sale, delivery and payment (hereinafter also referred to as: "GTC") shall apply exclusively to all our deliveries, services, offers, orders and order acceptances. These GTC shall apply for the duration of the entire business relationship. These GTC shall thus also apply to all future deliveries, services, offers, orders as well as order acceptances, even if we do not expressly refer to these GTC again in the future and these GTC are not separately agreed again.
(2) Deviating terms and conditions of the customer (hereinafter: "Buyer") which we do not expressly accept in writing shall not be binding on us, even if we do not expressly object to them or have not objected to them. These GTC shall apply in particular even if we carry out the delivery to the Buyer without reservation in the knowledge of terms and conditions of the Buyer that conflict with or deviate from these GTC or if we refer to a letter that contains or refers to general terms and conditions of the Buyer or a third party.
(3) These GTC shall only apply to our Buyers insofar as they are entrepreneurs (§ 14 BGB), legal entities under public law or special funds under public law pursuant to § 310 para. 1 BGB.
2. Conclusion of Contract
(1) Our offers are always subject to confirmation unless they are expressly designated as binding. This shall also apply if we provide the Buyer with documents such as catalogues, brochures, technical documentation (e.g. drawings, illustrations, plans, calculations, calculations, references to DIN standards) or other product descriptions (hereinafter also referred to as "Documents") - also in electronic form.
(2) The order of the goods by the Buyer shall be deemed to be a binding offer of contract. We shall be entitled to accept orders, contracts or other contractual offers of the Buyer within three weeks of their receipt. Acceptance of the contractual offer shall be declared by us in writing (e.g. by order confirmation, invoice or delivery bill) or by unconditional delivery of the goods to the Buyer. The Buyer shall be obliged to check all our confirmations of the conclusion of the contract for their factual correctness immediately after receipt.
(3) The scope of delivery shall be based on our written confirmation of the order. Deviations in dimensions, weight and/or number of items are permissible within customary tolerances. In the case of custom-made products, the delivered quantity may deviate from the ordered quantity by up to 10%.
(4) Any kind of description, weight and/or quantity data, namely in catalogues, price lists or in documents within the meaning of para. 1 are merely indicative or approximate values. They do not constitute binding quality specifications. Verbal statements on quality shall only be binding if they have been confirmed by us in writing.
(5) We reserve the right to make changes to the design and shape, deviations in colour and changes to the scope of delivery by the supplier, provided that the changes or deviations are reasonable for the Buyer, taking into account the justified interests of both parties to the contract. Insofar as we or the supplier use signs or numbers to designate the order or the object of purchase, no rights can be derived from this alone with regard to the specification of the object of purchase or the scope of delivery.
(6) The conclusion of the contract shall be subject to the proviso that we ourselves are supplied on time and in full. This shall apply solely in the event that we are not responsible for the non-delivery, in particular in the event of the conclusion of a congruent hedging transaction with our supplier. The Buyer will be informed immediately about the non-availability of the goods. The consideration will be refunded immediately, if applicable.
(7) We reserve the title and copyright to all offers and cost estimates submitted by us as well as to all documents within the meaning of para. 1 and other aids made available to the Buyer. The buyer may not make these documents accessible or known to third parties, use them himself or have them used by third parties, or reproduce them without our written consent, either as such or in terms of content. Upon our request, the Buyer shall immediately return these documents to us in their entirety and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
We reserve the property rights and copyrights to these documents. The Buyer may not make the documents accessible to third parties without our express consent.
3. Prices - Terms of payment - Rights in the event of default of payment by the Buyer
(1) Unless otherwise agreed in individual cases, our list prices current at the time of conclusion of the contract shall apply, ex delivery works or warehouse. The list prices do not include sales tax, packaging, freight, postage, customs duties, insurance and other shipping costs. If a freight/packaging-free delivery is promised, this shall only apply within the Federal Republic of Germany to the Buyer's receiving station, excluding cartage including our standard packaging. Additional costs due to a special type of shipment and packaging requested by the Buyer (e.g. express goods, express freight, air freight/seaworthy packaging, etc.) shall be borne by the Buyer.
(2) We reserve the right to reasonably change our prices for those parts of a total delivery which are scheduled for delivery after the expiry of four months after the conclusion of the contract if, between the conclusion of the contract and the scheduled delivery date, price changes of more than 5% for input material to be procured by us occur and these price changes affect the total cost of the goods. We shall prove this to the Buyer on request, taking into account the individual cost elements and their significance for the total price. In the event of a price increase of more than 5%, the Buyer shall be entitled to withdraw from the contract within two weeks of receipt of our notification to the extent that deliveries and services are still to be provided by us.
(3) Payment (net price plus statutory value added tax at the respective statutory rate) shall be made without deduction 14 days after the invoice date, unless a cash payment agreement exists with the Buyer, in which case the goods shall only be handed over against immediate payment. Decisive for the date of payment is the receipt of money by us. If the Buyer fails to make payment when due, interest shall be charged on the outstanding amounts from the due date at a rate of 9 percentage points above the respective base interest rate in accordance with § 247 of the German Civil Code (BGB). We reserve the right to assert further damage caused by default.
(4) The deduction of a discount shall require a special written agreement. Payment and discount periods granted by us shall commence on the invoice date. If the Buyer deducts a cash discount when paying invoices, the cash discount shall be added back accordingly when credit notes are offset. If a cash discount has been agreed, a cash discount deduction shall only be permissible if the Buyer has first fully met all other obligations towards us.
(5) If the Buyer is in default of payment, we shall be entitled to declare all claims due immediately. If the Buyer fails to pay due invoices, exceeds a granted term of payment, if the Buyer provides incorrect or incomplete information about his creditworthiness or if, after conclusion of the contract, we become aware of circumstances which call into question the Buyer's solvency or creditworthiness and which jeopardize the payment of our outstanding claims by the Buyer under the respective contractual relationship, we shall be entitled to perform or render outstanding deliveries or services only against advance payment or the provision of security, modifying the agreements made, and to declare the Buyer's entire existing residual debt immediately due and payable. If the Buyer refuses to make the advance payment or provide security, we may withdraw from the contract insofar as we have not yet performed our service, without the Buyerbeing able to derive any rights from this. We reserve the right to claim further damages. The Buyer shall be at liberty to provide evidence of lesser damage.
(6) If we withdraw from the contract due to a culpable breach of duty on the part of the Buyer, we shall be entitled to demand 10% of the order amount as lump-sum compensation without further proof; however, the lump-sum compensation shall be set off against further monetary claims as minimum damages. We reserve the right to prove higher damages as well as the right of the Buyer to prove that no damages or significantly lower damages have been incurred.
(7) The Buyer may only set off claims against our claims or assert a right of retention if his counterclaim is undisputed or has been finally determined by a court of law; the Buyer may otherwise only assert a right of retention insofar as it is based on claims arising from the purchase contract. Offsetting against claims of a group company of the Buyer shall be excluded in any case.
(8) We shall also be entitled, notwithstanding any provisions of the Buyer to the contrary, to first set off his payments against his older debts. If costs and interest have already been incurred, we shall be entitled to set off the Buyer's payments first against the costs, then against the interest and finally against the principal claim.
(9) We reserve the right to accept checks; they shall always be accepted only on account of performance, with all costs and expenses being charged and without any guarantee for timely presentation and protest. Any costs for return debit notes (e.g. for ec, bank or debit card payments) shall be reimbursed to us by the Buyer. If we participate in the SEPA Core Direct Debit Scheme, we shall notify the Buyer of the date and amount of the direct debit no later than 2 calendar days before the due date.
4. Delivery
(1) Deliveries shall be made ex works. At the Buyer's request and expense, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we shall be entitled in the case of a sale by delivery to a place other than the place of performance to determine the type of shipment (in particular transport company, shipping route, packaging) at our own dutiful discretion.
(2) Delivery times are always approximate. The delivery times, deadlines and dates stated by us are therefore non-binding unless expressly agreed otherwise in writing. Deadline days are always working days; Saturdays are not considered working days. Agreed delivery periods shall commence upon conclusion of the contract, but not prior to receipt of an agreed down payment; the same shall apply accordingly to changes in the delivery period. In the case of orders without assembly, the delivery period shall be deemed to have been complied with if the delivery item has left our works before its expiry. Otherwise, the delivery period shall be deemed to have been met if the Buyer has been notified that the goods are ready for dispatch.
(3) The start of the agreed delivery period is subject to clarification of all technical issues. A further prerequisite is the timely and proper fulfillment of contractual obligations by the Buyer. Thus, the delivery period shall commence at the earliest after receipt of all documents and materials to be provided by the Buyer for the execution of the order. If materials are provided by the Buyer, they shall be delivered to us in good time and in perfect condition at the Buyer's expense and risk with an appropriate quantity surcharge.
(4) In the event of collection by the Buyer or by the commissioned carrier, agreed deadlines must be met punctually. In the event of non-compliance with the collection date for goods notified as ready for dispatch, we shall be entitled to dispose of the material on the next day. The Buyer shall bear all costs arising from the delayed collection or provision of freight. If the delivery periods and dates agreed upon in the case of orders for the delivery of several partial quantities are not complied with by the Buyer, we shall be entitled, after setting a deadline to no avail, to deliver the remaining goods, to withdraw from the part of the order not yet completed or to claim damages for non-performance.
(5) Our obligation to deliver shall be suspended as long as the Buyer is not only insignificantly in arrears with an obligation. Any costs incurred by us as a result shall be borne by the Buyer. If the Buyer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled, without prejudice to further claims, to demand compensation for the damage incurred by us in this respect, including any additional expenses. We may - without prejudice to our rights arising from default on the part of the Buyer - demand from the Buyer an extension of delivery and performance periods or a postponement of delivery and performance dates at least by the period of time during which the Buyer fails to meet his contractual obligations towards us. We reserve the right to plead non-performance of the contract.
(6) We shall be entitled to make partial deliveries and to make deliveries within the agreed delivery and performance periods if
- the partial delivery is usable for the Buyer within the scope of the contractual purpose and
- the delivery of the remaining ordered goods is ensured and
- the Buyer does not incur any significant additional costs as a result (unless we declare our willingness to bear such costs).
(7) We shall not be liable for force majeure or other events beyond our control which were unforeseeable for us at the time of the conclusion of the contract and which temporarily prevent us or our supplier without any fault on our part (e.g. strike, lockout, interruption of operations, shortage of labor, weather conditions or traffic disruptions, difficulties or delays in the supply of raw materials, energy or machinery, war, acts of violence by third parties against persons or property or sovereign interventions or orders including monetary or trade policy measures). If such events temporarily prevent us from delivering the object of sale on the agreed date or within the agreed period, they shall release us from our obligation to deliver for the duration of the disruption - including during an already existing delay. This shall also apply if we do not receive the approvals of third parties required for the execution of deliveries in due time. In the event of obstacles of temporary duration, the delivery and performance deadlines shall be extended or postponed plus a reasonable start-up period. If such events make it impossible or substantially more difficult for us to deliver or perform and the hindrance is not only of temporary duration, i.e. of more than 120 days, the Buyer may withdraw from the contract. If the Buyer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by submitting a written declaration to us without delay.
(8) In any case, we shall be in default only upon written reminder after the due date. Otherwise, the occurrence of default in delivery shall be determined in accordance with the statutory provisions, unless otherwise stipulated above.
(9) If we are in default with a delivery or service or if a delivery or service becomes impossible, for whatever reason, our liability for damages shall be limited in accordance with § 4 para. 10, § 7.
(10) If we are in default of delivery, the Buyer may demand 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 late. We reserve the right to prove that the Buyer has not suffered any damage or that the damage is significantly less than the above lump sum.
5. Transfer of risk - packaging
(1) Our deliveries shall be EX WORKS - EXW (INCOTERMS 2010), unless otherwise agreed.
(2) If shipment of the goods has been agreed with the Buyer, the risk of accidental loss or accidental deterioration of the goods shall pass to the Buyer upon handover of the goods (whereby the beginning of the loading process shall be decisive) to the Buyer, the forwarder or carrier, but no later than upon leaving the factory or warehouse. Mode of dispatch, route and packaging shall be chosen at our discretion in the absence of written instructions from the Buyer. We shall only take out insurance against theft, breakage, transport, fire and water damage or other insurable risks at the request of and on behalf of the Buyer.
(3) Unless otherwise agreed, we shall not take back transport and other packaging, with the exception of loan packaging and pallets. The Buyer shall be responsible for the disposal of the packaging.
(4) Returnable packaging (transport boxes, pallets, etc.) are our inalienable property. They are to be returned freight prepaid no later than 30 days after delivery. If this is not done, we may charge for them at the current price of brand-new packaging or demand rental fees.
(5) If shipment is delayed due to circumstances for which the Buyer is responsible, the risk shall pass to the Buyer from the day on which the delivery item is ready for shipment and we have notified the Buyer of this. In this case, we are entitled to store the goods at our discretion at the expense and risk of the Buyer and to demand payment of the agreed price. We may charge a flat rate of 0.5 % of the invoice amount per month or part thereof for the costs, but not more than a total of 5 % of the invoice amount. The proof of higher damages and our legal claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; the lump-sum compensation shall, however, be set off against further monetary claims as minimum damages. The Buyer shall be entitled to prove that we have not suffered any damage at all or that the damage is significantly less than the aforementioned lump sum.
(6) Delivered items shall be accepted by the Buyer, even if they show minor defects, without prejudice to the rights under § 6. If the Buyer is in arrears with the acceptance of the object of purchase for more than 14 days from receipt of the notification of readiness for delivery due to intent or gross negligence, we shall be entitled to withdraw from the contract or to claim damages after setting a deadline of a further 14 days. The setting of a deadline is not required if the buyer seriously or finally refuses acceptance or is obviously unable to pay the purchase price even within this period.
6. Warranty
(1) The Buyer shall carefully inspect the goods delivered by us immediately after delivery to the Buyer or to the third party designated by the Buyer. The goods delivered by us shall be deemed to have been approved if we have not been notified in writing of a defect with regard to obvious defects or other defects which were apparent on immediate, prompt inspection within 7 working days of delivery of the goods or otherwise within 7 working days of discovery of the defect or any earlier point in time at which the defect was apparent to the Buyer on normal use of the goods without closer inspection. At our request, the goods complained about must be returned to us so that we can inspect them. If the notice of defect turns out to be unfounded, the buyer shall be obliged to reimburse us for the expenses incurred for the inspection, unless he is not responsible for the unfounded notice of defect. In the event of a justified notice of defect, we shall reimburse the costs of the most favorable shipping route. The latter shall not apply insofar as the costs increase because the goods are located at a place other than the place of intended use and disproportionate costs are incurred by us as a result.
(2) In the event of material defects in the goods delivered by us, we shall be obliged and entitled, at our option to be made within a reasonable period of time, first to remedy the defect (rectification) or to deliver a defect-free item (replacement delivery). Our right to refuse the chosen type of subsequent performance under the statutory conditions shall remain unaffected. The Buyer may only withdraw from the contract or reduce the purchase price appropriately if the subsequent performance has failed or a reasonable period to be set by the Buyer for the subsequent performance has expired unsuccessfully or is dispensable under the statutory provisions. Subsequent performance shall be deemed to have failed if two attempts at subsequent performance have been unsuccessful or if subsequent performance is impossible or unreasonable for the Buyer.
(3) The rights of the Buyer set forth in § 6 para. 1 and para. 2 shall be excluded in case of insignificant deviation from the agreed quality, in case of insignificant impairment of usability, in case of natural wear and tear or in case of damage occurring after the passing of risk due to faulty or negligent handling, excessive strain or due to special external influences not assumed under the contract. They are also excluded for defects resulting from documents (drawings, samples, etc.) submitted by the buyer, unless the defect is also due to circumstances for which we are responsible. This also applies in particular to the function of items manufactured according to the Buyer's design or design documents submitted by the Buyer.
(4) Claims of the Buyer for damages or reimbursement of futile expenses based on our fault shall only exist in accordance with § 7 and shall otherwise be excluded.
(5) Any delivery of used items agreed with the Buyer in individual cases shall be made to the exclusion of any warranty.
(6) The Buyer may not assign claims for defects.
(7) If a claim is made against the Buyer by a consumer or by way of recourse by an entrepreneur due to a defect in the goods, the Buyer must notify us immediately. Recourse against us shall only be possible to the extent that the Buyer is entitled to warranty claims for defects against us in consideration of these GTC. If a claim is made against the Buyer by his customer on the basis of provisions which deviate from the aforementioned warranty provisions, or if he takes back goods as a gesture of goodwill, these agreements shall apply exclusively in the relationship between the Buyer and his customer; recourse against us shall not be possible in this respect.
(8) In the case of overnight deliveries, the Buyer shall immediately inspect the relevant delivery of goods. Transport damage which can be detected during a proper inspection must be reported at the latest by 12:00 noon on the day of delivery or, if this is a Saturday or public holiday, by 12:00 noon on the next working day. For other defects, the aforementioned regulations according to para. 1 shall apply.
7. Liability
(1) Our liability for damages or futile expenses - irrespective of the legal grounds - shall only apply if the damage or the futile expenses
a) were caused by us or one of our vicarious agents through culpable breach of such an obligation, the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the Buyer may regularly rely (material contractual obligation), or
b) are due to a grossly negligent or intentional breach of duty by us or one of our vicarious agents.
In deviation from § 7 para. 1 a), we shall only be liable for damage or futile expenses caused by advice and/or information which is not to be remunerated separately in the event of intentional or grossly negligent breach of duty, insofar as this breach of duty does not constitute a material defect pursuant to §§ 434, 633 BGB of the goods delivered by us.
(2) If we are liable pursuant to § 7 para. 1 a) for the breach of an essential contractual obligation without gross negligence or intent, our liability for damages shall be limited to the foreseeable, typically occurring damage. In this case, we shall in particular not be liable for the Buyer's loss of profit which is not foreseeable and does not typically occur and not for indirect consequential damage which is not foreseeable. The above limitations of liability pursuant to sentences 1 and 2 shall apply in the same way to damages caused by gross negligence or intent on the part of our employees or agents, provided that they are not our managing directors or officers. We shall not be liable for indirect damages incurred by the Buyer due to the assertion of contractual penalty claims by third parties.
(3) Our liability for slight negligence shall be limited:
- in the case of property damage and financial loss covered by an insurance policy taken out by the Buyer, to the disadvantages associated with the Buyer's insurance claim;
- in terms of amount, for each case of damage to property up to an amount of € 200,000.00 and for financial loss up to an amount of € 50,000.00.
(4) The above limitations of liability set out in § 7 para. 1 to para. 3 shall not apply if our liability is mandatory under the provisions of the Product Liability Act or if claims are asserted against us based on injury to life, limb or health. If the goods delivered by us lack a guaranteed characteristic, we shall only be liable for such damages whose absence was the subject of the guarantee.
(5) Any further liability for damages other than that provided for in § 7 (1) to (4) shall be excluded, irrespective of the legal nature of the claim asserted. This shall also apply in particular to claims for damages arising from culpa in contrahendo pursuant to Section 311 (3) of the German Civil Code (BGB), positive breach of contract pursuant to Section 280 of the German Civil Code (BGB) or claims in tort pursuant to Section 823 of the German Civil Code (BGB).
(6) Insofar as our liability for damages vis-à-vis the Buyer is excluded or limited pursuant to § 7 paras. 1 to 5, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
8. Statute of limitations
(1) Claims of the Buyer based on material defects and defects of title in the goods delivered by us or based on services rendered by us in breach of duty - including claims for damages and claims for reimbursement of futile expenses - shall become statute-barred within one year from the statutory commencement of the limitation period, unless otherwise provided for in the following provisions.
(2) If, however, the goods are a building structure or an item that has been used for a building structure in accordance with its customary manner of use and has caused the defectiveness thereof, the limitation period shall be 5 years from delivery.
(3) The above provisions shall not apply to the limitation of claims based on injury to life, limb or health, nor to the limitation of claims under the Product Liability Act. Also unaffected are special statutory provisions for claims in rem for surrender of goods by third parties (§ 438 para. 1 no. 1 BGB), in the event of fraudulent intent on the part of the Seller (§ 438 para. 3 BGB) and for claims in supplier recourse in the event of final delivery to a consumer (§ 479 BGB). In the cases mentioned in this § 8 para. 3, the statutory limitation periods shall apply to the limitation of these claims.
9. Retention of Title
(1) We retain title to our goods (hereinafter referred to as "Retained Goods") until all present or future claims arising from the entire business relationship, including all ancillary claims, have been paid in full and until all checks have been cashed. This shall also apply if, in the case of a current account, the purchase price for certain deliveries of goods designated by the Buyer has been paid, since the reserved title serves as security for our balance claim.
(2) The Buyer shall be obliged to treat the reserved goods with care and to maintain them. Insofar as maintenance and inspection work is required, the Buyer must carry this out in good time at his own expense. In particular, the Buyer is obliged to insure the reserved goods at his own expense against loss, damage and destruction, e.g. against fire, water and theft damage, sufficiently at replacement value and to prove this to us upon request. The Buyer hereby assigns to us his claims arising from these insurance contracts. We accept this assignment.
(3) The Buyer may neither pledge nor assign by way of security the goods subject to retention of title which are our property. Access by third parties to our goods subject to retention of title or to a claim assigned to us, in particular seizures, must be notified to us by the Buyer in writing without delay. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action in accordance with § 771 ZPO (German Code of Civil Procedure), the Buyer shall be liable for the loss incurred by us.
(4) In the event of a breach of contract by the Buyer, in particular default of payment, we shall be entitled - after the unsuccessful expiry of a reasonable deadline set for the Buyer to perform and without prejudice to further (damage) claims to which we are entitled - to mark the reserved goods as our property or to have them marked as our property, to prohibit their further use as well as to withdraw from the contract and to take back the reserved goods. For this purpose, the buyer shall irrevocably grant us access to his business premises. The buyer is obliged to surrender the goods. The statutory provisions on the dispensability of setting a deadline shall remain unaffected. In the event of other breaches of duty, in particular those which endanger the existence of the reserved goods, we shall be entitled to demand repossession, even without withdrawing from the contract.
(5) After taking back the reserved goods, we shall be entitled to utilise them. The proceeds of the sale shall be credited against the Buyer's liabilities - less reasonable costs of sale. The utilisation costs shall generally amount to 10% of the utilisation proceeds, unless we prove higher costs or the Buyer proves lower costs.
(6) The Buyer shall be entitled to resell goods owned or co-owned by us in the ordinary course of his business. The aforementioned authorization shall not exist insofar as the Buyer has assigned or pledged the claim against his contractual partner arising from the resale of the goods - in each case effectively - to a third party in advance or has agreed a prohibition of assignment with such third party.
(7) Processing of the goods subject to retention of title by the Buyer shall be carried out on our behalf and shall always be carried out on our behalf without any obligation on our part. In the event of processing, combination or inseparable mixing of our reserved goods with other items not belonging to us, we shall acquire co-ownership of the newly created item in the ratio of the invoice value of the reserved goods to the other items at the time of processing, combination or mixing. The co-owned goods created thereafter shall be deemed to be goods subject to retention of title within the meaning of para. 1. Accordingly, the same shall apply to the item created by the processing, combination or mixing as to the goods subject to retention of title. If our ownership lapses as a result of combining or mixing, the Buyer hereby assigns to us the ownership rights to the new goods to which he is entitled to the extent of the invoice value of our goods and shall hold them in safe custody for us free of charge. The Buyer shall be entitled to dispose of the new products created by processing or transformation, combination or mixing in the ordinary course of business as long as he meets his obligations arising from the business relationship with us in due time. Under no circumstances, however, shall the Buyer be entitled to resell or otherwise dispose of such new products under agreement with his customer on a non-assignment clause, or to pledge or assign them as security. The Buyer hereby assigns to us by way of security his claims arising from the sale of these new products to which we have title to the extent of our ownership share in the goods sold. If the buyer combines the delivered goods with a main item, he hereby assigns to us his claims against the third party up to the value of the goods. To secure our claims against the Buyer, the Buyer also assigns to us such claims as accrue to him against a third party as a result of the combination of the goods subject to retention of title with a property. We hereby accept these above assignments in each case.
(8) In order to secure the fulfillment of all our claims referred to in § 9 para. 1, the Buyer hereby assigns to us all claims - including future and conditional claims - against his customers arising from the resale of the goods subject to retention of title together with all ancillary rights in the amount of the value of the delivered goods with priority over the remaining part of his claims. Insofar as we are only entitled to co-ownership of the sold goods, the buyer shall assign the claim in accordance with our co-ownership quotas. We hereby accept these above assignments in each case. If the Buyer so requests, we shall be obliged to release the securities to which we are entitled to the extent that their realisable value exceeds the value of our outstanding claims against the Buyer by more than 10%. We hereby declare the release of these securities. The selection of the securities to be released shall be incumbent upon us. The release shall be effected by transfer of title or reassignment.
(9) The Buyer shall remain authorised to collect the claims assigned to us in the ordinary course of business. However, the Buyer shall not be entitled to agree a current account relationship or a prohibition of assignment with his customers with regard to these claims or to assign or pledge them to third parties. Our authority to collect the claim ourselves shall remain unaffected by this. However, we undertake not to collect the claim as long as the Buyer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended. However, if this is the case, the Buyer shall, upon request, immediately send us a list of the claims assigned to us, stating the address of the customer and the amount of the claim. In addition, the Buyer shall be obliged, at our request, to notify the Buyer of the assignment and to provide us with the information required to assert our rights or to hand over the necessary documents.
(10) In the event of cessation of payments or over-indebtedness of the Buyer or in the event of an application for insolvency or composition proceedings against his assets, we shall be entitled, at our discretion, either to assert the above rights or to withdraw from the contract in accordance with the statutory provisions.
10 Return of goods
(1) The Buyer shall be entitled to return to us defect-free and clean goods purchased from us in their unopened original packaging at his expense if we agree to this. The Buyer shall have no legal claim to the return of defect-free goods. We do not need to give reasons why we refuse to agree to the return of the goods. Returns with a net value of less than 20 EUR (small parts, bulbs, etc.) and special orders are generally not taken back.
(2) We may make consent to the return of defect-free goods conditional on our inspecting the goods at the Buyer's expense. The required consent to take back the goods shall in particular not be considered if the goods contain wearing parts such as rubber, oils or greases which have a detrimental effect on the reusability of the goods. If we do not agree to take back the goods after inspecting them, we shall return the goods to the Buyer at the Buyer's expense.
(3) If the goods have been properly delivered by us according to the order and are returnable, the Buyer may, in exceptional cases requiring our express consent, receive a credit note up to the amount of the purchase price against return of the goods. Depending on the time of return (difference in days between purchase and notification of return), restocking fees of up to 20% of the net purchase price may apply, which will be deducted from the credit note.
11. Export control
If licenses are required for the export of our products, the buyer shall obtain them at his own expense and under his own responsibility. We shall not be liable in the event that a required license is not granted. If claims are asserted against us by third parties in the event of a violation of export regulations, the Buyer shall indemnify us against these costs as well as for the costs incurred in connection with the protection of our rights.
12. Final provisions
(1) The place of performance for all obligations arising from the contractual relationship shall be the registered office of our company in Hagen (Germany), unless expressly agreed otherwise. This shall also be the place of performance and delivery within the meaning of Art. 7 No. 1 lit. b) Brussels Ia Regulation.
(2) The exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be Hagen, insofar as the Buyer is a merchant, a legal entity under public law or a special fund under public law and no mandatory statutory provisions to the contrary exist. In the aforementioned cases, we shall also be entitled to sue the Buyer at his general place of jurisdiction.
(3) These General Terms and Conditions and the entire legal relationship between the Buyer and us shall be governed exclusively by the substantive law of the Federal Republic of Germany as it applies between German merchants. The provisions of the regulations on the international sale of goods (CISG - UN Sales Convention) shall not apply.
(4) Transfers of rights and obligations of the Buyer under the contract concluded with us shall require our written consent to be effective.
(5) Additions and amendments to the agreements made between the parties, including these General Terms and Conditions for the Supply of Goods, must be in writing in order to be effective. Transmission by fax and e-mail shall be sufficient to comply with the written form requirement.
(6) We store data of the Buyer within the scope of the mutual business relations in accordance with the provisions of the Federal Data Protection Act (BDSG).
(7) Should individual provisions of these General Terms and Conditions be invalid or unenforceable or contain a loophole, this shall not affect the validity of the remaining provisions. The invalid or impracticable or incomplete provision shall be replaced by a complete and permissible provision that comes as close as possible to what the parties would have agreed if they had known about the invalidity or impracticability or incompleteness of the provision.