General Terms and Conditions of Sale — 11/2013
§ 1 General, scope of application
(1) These General Terms and Conditions of Sale (GTCS) apply to all our business relations with our customers (hereinafter: “Buyer”).
(2) The GTCS apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also referred to as “goods”), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 651 BGB). The GTCS in their respective version shall also apply as a framework agreement for future contracts for the sale and/or delivery of movable goods with the same Buyer without us having to refer to them again in each individual case; we shall inform the Buyer immediately of any changes to our GTCS in this case.
(3) Our GTCS shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the buyer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the buyer without reservation in the knowledge of the buyer’s GTCS.
(4) Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTCS. A written contract or our written confirmation shall be authoritative for the content of such agreements.
(5) Legally relevant declarations and notifications to be made to us by the buyer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing to be effective.
(6) References to the applicability of statutory provisions are only for clarification purposes. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTCS.
(7) Customer data is stored (§§ 28, 33 BDSG).
§ 2 Conclusion of contract
(1) Our offers are subject to change and non-binding. This also applies if we have provided the buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents — also in electronic form — to which we reserve property rights and copyrights.
(2) The order of the goods by the buyer shall be deemed to be a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 2 weeks of its receipt by us.
(3) Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the buyer.
§ 3 Delivery period and delay in delivery
(1) The delivery period shall be agreed individually or stated by us upon acceptance of the order. The start of the delivery period is subject to the clarification of all technical questions.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the buyer of this immediately and at the same time inform him of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the buyer. A case of non-availability of the performance in this sense shall be deemed to be, in particular, the failure of our supplier to deliver on time if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the buyer is required. If we are in default of delivery, the buyer may demand lump-sum compensation for the damage caused by the default. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed 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 aforementioned lump sum.
(4) The rights of the Buyer pursuant to § 8 of these GTCS and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
(1) Delivery shall be made ex warehouse, which is also the place of performance. At the request and expense of the buyer, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. However, in the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the buyer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. If the buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.
(3) If the buyer is in default of acceptance, fails to cooperate or delays our delivery for other reasons for which the buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we shall charge a lump-sum compensation in the amount of 0.5% of the invoice amount per calendar month up to a maximum of 5% in the event of final non-acceptance, starting one month after expiry of the delivery period or — in the absence of a delivery period — after notification that the goods are ready for dispatch. The proof of higher damages and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The buyer shall be entitled to prove that we have not incurred any damage at all or only significantly less damage than the aforementioned lump sum.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, namely ex warehouse, plus statutory VAT and excluding packaging; this shall be invoiced separately.
(2) In the case of a sale by delivery to a place other than the place of performance (§ 4 para. 1), the buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the buyer. Any customs duties, fees, taxes and other public charges shall be borne by the buyer. We do not take back transport packaging and all other packaging in accordance with the Packaging Ordinance; it becomes the property of the buyer, with the exception of pallets.
(3) Unless otherwise agreed, the purchase price shall be due from the date of invoice and delivery. The deduction of a discount requires a special written agreement.
(4) 30 days after delivery and invoicing, the buyer is in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to claim further damage caused by default. With respect to merchants, our claim to the commercial interest on arrears (§ 353 HGB) shall remain unaffected.
(5) The buyer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer’s counter rights shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these GTCS.
(6) If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is jeopardised by the buyer’s inability to pay (e.g. by an application to open insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.
§ 6 Retention of title
(1) Ee reserve title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The buyer must inform us immediately in writing if and insofar as third parties have access to the goods belonging to us.
(3) In the event of conduct by the buyer in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and withdrawal. If the buyer does not pay the due purchase price, we may only assert these rights if we have previously set the buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
(4) The buyer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title extends to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we are deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The Buyer hereby assigns to us by way of security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the buyer mentioned in paragraph 2 shall also apply with regard to the assigned claims.
(c) The buyer remains authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the buyer meets his payment obligations towards us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we may demand that the buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the buyer’s request.
§ 7 Claims for defects of the buyer
(1) The statutory provisions shall apply to the rights of the buyer in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the goods to a consumer (supplier’s recourse pursuant to §§ 478, 479 BGB).
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. The product descriptions designated as such (including those of the manufacturer), which were provided to the buyer prior to his order or were included in the contract in the same way as these General Terms and Conditions, shall be deemed to be an agreement on the quality of the goods.
(3) Insofar as the quality has not been agreed, it is to be assessed according to the statutory regulation whether a defect is present or not (§ 434 Para. 1 S 2 and 3 BGB). However, we do not accept any liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
(4) The buyer’s claims for defects presuppose that he has fulfilled his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during the inspection or later, we must be notified of this in writing without delay. The notification shall be deemed to have been made without delay if it is made within two weeks, whereby timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the buyer shall notify us in writing of obvious defects (including incorrect and short deliveries) within two weeks of delivery, whereby timely dispatch of the notification shall also suffice to meet the deadline. If the buyer fails to duly inspect and/or notify the defect, our liability for the non-notified defect shall be excluded.
(5) If the delivered item is defective, the buyer may initially demand, at his discretion, either rectification of the defect (subsequent improvement) or delivery of a defect-free item (replacement delivery) as subsequent performance. If the buyer does not declare which of the two rights he chooses, we may set him a reasonable deadline for this. If the buyer does not make the choice within the deadline, the right of choice shall pass to us upon expiry of the deadline.
(6) We are entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect.
(7) The buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the buyer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor its re-installation if we were not originally obliged to install it.
(8) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs (not: removal and installation costs), if a defect is actually present. However, if a request by the buyer to remedy a defect turns out to be unjustified, we may demand reimbursement of the resulting costs from the buyer.
(9) In urgent cases, e.g. in the event of a risk to operational safety or to prevent disproportionate damage, the buyer shall have the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be notified immediately of such self-execution, if possible in advance. The right of self-execution does not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
(10) If the supplementary performance has failed or if a reasonable deadline to be set by the buyer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price. In the event of an insignificant defect, however, there shall be no right of rescission.
(11) Claims of the buyer for damages or reimbursement of futile expenses exist only in accordance with § 8 and are otherwise excluded.
§ 9 Limitation
(1) Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall begin with acceptance.
(2) However, if the goods are a building or an object which has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory regulation (§ 438 para. 1 no. 2 BGB). Also unaffected are special statutory regulations for claims in rem for the 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).
(3) The above limitation periods of the law on sales also apply to contractual and non-contractual claims for damages of the buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act shall remain unaffected in any case. Otherwise, the statutory limitation periods shall apply exclusively to the buyer’s claims for damages pursuant to § 8.
§ 10 Choice of law and place of jurisdiction
(1) These GTCS and all legal relations between us and the Buyer shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. The prerequisites and effects of the retention of title pursuant to § 6 shall be subject to the law of the respective location of the item, insofar as the choice of law made in favour of German law is inadmissible or ineffective thereafter.
(2) If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive — including international — place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Munich. However, we are also entitled to bring an action at the buyer’s general place of jurisdiction.
Von Guttenberg GmbH
Tel +49 89 909983-0
Fax +49 89 909983-20
Managing Director: Jörg von Guttenberg
Register Court: Munich Local Court
Registration number: HRB 62953
VAT ID: DE129489054