General Terms and Conditions of Business (GTC)
- General: The following terms and conditions of delivery shall apply to all agreements, deliveries and other services, including consultancy services at a charge or without, to the extent that they are not amended or ruled out with the vendor’s express written approval. The purchaser’s T&C shall not be obligatory even if the vendor does not expressly contradict them once again.
- Quote and scope of supply: Quotes shall always be subject to change without notice. The documents forming part of the quotation such as illustrations, diagrams, statements of weight and dimensions shall only be used as approximate indications, provided they have not been expressly formulated as binding. The vendor reserves ownership and copyrights to estimates of costs, diagrams, calculations and other documents which have been designated as confidential. They may not be made accessible to third parties without the vendor’s express written consent. Services and overheads shall be stated as average figures. The vendor reserves ownership and copyrights to estimates of costs, diagrams, calculations and other documents which have been designated as confidential. They may not be made accessible to third parties. The purchaser shall be bound by the order for a maximum of 4 weeks. The purchase agreement has been concluded when the vendor confirms acceptance of the order of the object of purchase designated in more detail in writing within the said period or has made delivery. However, the vendor shall be obliged to notify all and any rejection of the order without delay following clarification of the delivery capacity. For the scope of the delivery, the written order confirmation from the vendor shall be decisive, in the event of a quotation by the vendor bound to a period of time and punctual acceptance, and to the extent that no punctual order confirmation is available. Assurance of specific features, side-agreements and changes shall require written confirmation from the vendor. Changes to construction and shape of the object of delivery shall remain reserved to the extent that the object of delivery is not essentially changed and the changes can be reasonably expected of the purchaser. If facts become known to the vendor following conclusion of the contract which give rise to justified doubts about the purchaser’s creditworthiness, without the vendor being answerable for the lack of knowledge, the vendor shall be entitled to demand payment in advance or matching collateral and to withdraw from the agreement if the buyer refuses. The same shall apply if the purchaser fails to fulfil its payment duties from previous agreements despite a repeated reminder.
- Price and payment: Without a specific agreement, prices shall apply ex vendor’s works or, in the event of dispatch from the manufacturer’s works, ex works, exclusive of packaging. Value Added Tax at the statutory amount at the time in question shall be added to the prices. To the extent that nothing to the contrary can be seen from the order confirmation, the purchase price for new objects shall be due for payment net (without deduction) within 8 days of the invoice date. For second-hand objects, the purchase price shall be due for payment upon hand-over of the object of purchase and hand-over or transmission of the invoice. The statutory regulations concerning the consequences of arrears in payment shall apply. If delivery is to be more than 4 months following conclusion of the agreement, the vendor’s prices valid on the day of dispatch shall be charged. Without specific agreement, payment shall be made immediately after delivery or provision and receipt of the invoice without any deduction and free of transaction fees by the vendor. Discount assurances shall only apply if the purchaser is not in arrears with the payment of previous deliveries. The vendor shall only accept discount-capable and properly taxed bills by way of payment following matching agreement. Credits for bills and cheques shall be subject to receipt less the expenditure on the value date on which the vendor can dispose of the counter-value. If the payment terms are not complied with or facts become known which make the purchaser’s creditworthiness appear dubious, the vendor’s receivables shall become due for payment immediately, even in the event of granting of payment periods and regardless of the term of all and any bills which have been accepted and credited. It is not permitted to offset with all and any counterclaims of the purchaser which are disputed by the vendor or are not legally effective. Claiming a right of retention on account of counterclaims which have not been acknowledged or are not legally effective has been ruled out to the extent that these claims are not based on the same contractual relationship. If defects are notified, the purchaser’s payments may be withheld to an extent in a suitable ratio to the defects which have occurred. Payments may only be made to the vendor’s employees if they can manifest a valid power of attorney for collection.
- Delivery periods and arrears: Delivery periods and dates shall be deemed agreed only approximately unless the vendor has expressly given a written assurance as binding. The delivery period shall commence on the date of the signing of a written purchase agreement or the dispatch of the order confirmation, albeit not before provision of the documents, approvals, releases to be procured by the purchaser and before receipt of an agreed advance payment. The right to correct and punctual supply to us shall be reserved. The delivery period shall be complied with if the object of delivery has left the vendor’s warehouse or, in the event of dispatch from the manufacturer’s warehouse, has left the latter or readiness for dispatch has been notified. The delivery period shall be extended suitably – also within arrears – in the event of measures within the framework of industrial disputes, in particular strike and lock-out, and if unforeseen obstacles occur which are outside the vendor’s sphere of influence, to the extent that such obstacles can be proven to have an essential influence on the supply of the object sold. This shall also apply if these circumstances occur with the vendor’s supplier and its sub-suppliers. The start and end of such obstacles shall be notified to the purchaser by the vendor as soon as possible in important cases. Compliance with the delivery period shall presuppose fulfilment of the purchaser’s contractual duties. If the purchaser has a claim to reimbursement of arrears damage, it shall be limited to no more than 5% of the agreed purchase price in the event of slight negligence by the vendor. If the vendor additionally wishes to withdraw from the contract and/or demand damages in lieu of performance, it must set a suitable period for delivery by the vendor. If the purchaser has a claim to damages in lieu of performance, the claim shall be limited in the event of slight negligence to no more than 25% of the agreed purchase price. If the purchaser is a public-law entity, a public-law fund or an entrepreneur acting in the exercising of commercial or freelance professional activity at the conclusion of the agreement, claims to damages shall be ruled out in cases of slight negligence. If delivery becomes impossible for vendor by chance while it is in arrears, it shall be liable with the liability limits agreed above. The vendor shall not be liable if the damage would have occurred even in the event of punctual supply. The vendor shall not be liable for loss of profits and damage from interruptions to the purchaser’s operations. For new objects of purchase, changes of construction and shape, shades and changes to the scope of delivery on the part of the vendor shall remain reserved during the delivery period to the extent that the changes or deviations can be reasonably expected of the purchaser, taking the vendor’s interests into due account. To the extent that the vendor uses characters or numbers for the designation of the order or the object of purchase which has been ordered, no rights can be derived from this alone.
- Passage of risk and transport: Without a specific agreement, the dispatch route and means shall be left to the vendor’s choice. The goods will be insured at the purchaser’s request and expense. Risk shall pass to the purchaser upon provision of the goods to a haulier or freight forwarder, albeit no later than departure from the warehouse or, in direct dispatch ex works, when leaving the works. This shall also apply if part deliveries are made or the vendor has also taken on further services, e.g. the costs of dispatch or delivery and erection. If dispatch is delayed due to circumstances for which the purchaser is answerable, the risk shall pass to the purchaser from the day of readiness for dispatch, although the vendor shall be obliged to obtain the insurances which the purchaser requests at the latter’s expense. Even if objects supplied manifest unessential defects, they shall be accepted by the purchaser notwithstanding the rights from Section 7 (notification of defects and liability for defects). Part deliveries shall not be permitted.
- Retention of title: Until settlement of the claims accruing to the vendor on the basis of the purchase agreement, the object of purchase shall remain the vendor’s property. If the purchaser is a public-law entity, a public-law fund or an entrepreneur acting in the exercising of commercial or freelance professional activity at the conclusion of the agreement, the retention of title shall also exist for the vendor’s receivables against the purchaser from the ongoing business relationship until settlement of the claims accruing to it in connection with the purchase. If the purchaser so requests, the vendor shall be obliged to waive retention of title if the purchaser has incontestably fulfilled all the claims in connection with the object of purchase and suitable collateral exists for the remaining claims from the ongoing business relationships. During the term of the retention of title, the right to possession of the vehicle registration document shall accrue to the vendor. In the event of sale of second-hand objects, the vendor can withdraw from the contract in the event of arrears in payment by the purchaser. The purchaser may not dispose of the object of purchase or grant third parties contractual use. In the event of sale of new objects of purchase, the following shall apply as a supplement:
- Machining or processing of the goods supplied by the vendor shall be done on the vendor’s behalf as manufacturer in the sense of § 950 BGB (Bürgerliches Gesetzbuch [German Civil Code]), without obligating it. The goods originating as a result of the processing or machining shall also be deemed conditional commodities in the sense of these terms. In the event of blending or processing of the vendor’s goods with other goods not belonging to it, co-ownership of the object originating as a result of the blending or processing shall accrue to the vendor in the ratio of the sum of the vendor’s invoice values and the outside goods used. The new object shall not be regarded as the principal object in the sense of § 947 subsection 2 BGB.
- During the term of the retention of title, the purchaser shall be entitled to possess and use the object of purchase as long as it fulfils its duties from the retention of title pursuant to the following provisions of this section and is not in arrears in payment. In the event of arrears in payment by the purchaser, the vendor can withdraw from the purchase agreement. If the vendor additionally has a claim to damages in lieu of performance and takes the object of purchase back again, the vendor and the purchaser agree that the vendor shall reimburse the customary sales value of the object of purchase at the time of the return. If the purchaser so requests, which can only be done without delay after the object of purchase has been taken back, a publicly appointed and sworn expert analyst shall determine the customary sales value at the purchaser’s choice. The purchaser shall bear all costs of the return and exploitation of the object of purchase. The costs of exploitation shall be 5% of the customary sales value without proof. They shall be higher or lower if the vendor proves higher or the purchaser proves lower costs.
- The purchaser may only sell the vendor’s property, also the goods originating by blending, machining or processing, in customary business dealings under its normal terms and conditions of business. The purchaser shall only be entitled to resale if it ensures that the claims therefrom plus all subsidiary rights pass to the vendor to the amount of the value of the conditional commodities. The purchaser shall not be entitled to other disposals of the conditional commodities, including pledging or transfer by way of security, or to other disposals of the claims which it has assigned or has to assign to the vendor. If the conditional commodities are sold by the purchaser, alone or together with goods not belonging to the vendor, also within the framework of contracts for work or work supplies, the purchaser here and now assigns the claims originating from the resale to the vendor to the amount of the value of the conditional commodities with all subsidiary rights and in a ranking before the remainder. To the same extent, the purchaser here and now assigns the claims accruing to it for any other legal reason against third parties in connection with the conditional commodities to the vendor. If conditional commodities in co-ownership of the vendor are resold, the purchaser here and now assigns its claims from the resale to the vendor to the amount equivalent to the part value of the vendor’s part share in the co-ownership. The vendor accepts the aforementioned assignments. The value of the conditional commodities in this sense shall be the vendor’s invoice value plus a security surcharge of 20%, which however shall not apply to the extent that third parties’ rights contradict. The assignment of claims shall also extend to current account balance claims.
- To the extent agreed at conclusion of the contract, the purchaser shall conclude property insurance with a suitable retention for the term of the retention of title with the proviso that the rights from the insurance contract accrue to the vendor. If the purchaser fails to comply with this duty despite a written reminder from the vendor, the vendor can conclude the property insurance itself at the purchaser’s expense, pay the premiums in advance and collect the parts of the debts from the purchase agreement. To the extent not agreed to the contrary, the payments from the property insurance shall be used to the complete extent for the restoration of the object of purchase. If the vendor waives repair in the event of severe damage, the insurance payment shall be used for redemption of the purchase price, of the prices for the subsidiary payments and for the costs expended by the vendor.
- The purchaser shall have the duty to keep the object of purchase in a proper condition during the term of the retention of title and to have all the maintenance work provided for by the vendor and necessary repairs – apart from emergencies – carried out without delay by the vendor or a specialist workshop acknowledged by it for attendance to the object of purchase.
- Subject to revocation, the vendor authorises the purchaser to collect the claim from the resale. The vendor shall not make use of its own power of collection as long as the purchaser complies with its payment duties, also towards third parties. If the vendor so requests, the purchaser shall name the debtors of the assigned claims and notify them of the assignment. The vendor is hereby authorised to notify the debtors of the assignment itself.
- The purchaser shall inform the vendor without delay about compulsory enforcement measures by third parties against the conditional commodities or the assigned claims, providing the documents necessary to challenge this. The right to resale, exploitation and the authorisation to collect the assigned claims shall expire upon cessation of payment, application for or opening of insolvency proceedings or judicial or extrajudicial composition proceedings; the collection authorisation shall likewise expire in the event of a protest against a bill or a cheque.
- Notification of and liability for defects: The vendor shall only be liable for defects as follows: if defective goods are supplied, the purchaser can demand the following if the statutory preconditions and those stated below have been fulfilled and to the extent that nothing to the contrary has been agreed:
- If defective goods are supplied, the vendor shall be given the opportunity of subsequent performance by reworking or resupplying before the start of production (processing or reproduction) unless this cannot be reasonably expected of the purchaser. If the vendor cannot do this or fails to comply with it without delay, the customer can withdraw from the agreement without setting any further period and send the goods back at the vendor’s risk. In urgent cases, the purchaser can carry out the remedying of the defects itself or have it done by a third party by agreement with the vendor. Costs incurred as a result thereof shall be borne by the vendor.
- If the defect is only established after the start of production despite compliance with the duty to notification of defects, the customer can demand subsequent performance and reimbursement of the transport costs necessary for the purpose of subsequent performance (without costs of towing) and dismantling and installation costs (costs of work; costs of material to the extent agreed) – pursuant to § 439 subsections 1, 3 and 4 BGB or reduce the purchase price.
- The purchaser’s claims from defects in quality in new objects of purchase shall be barred in two years according to statutory directives, for second-hand objects in one year from delivery of the object of purchase to the customer. If the purchaser is a public-law entity, a public-law fund or an entrepreneur acting in the exercising of commercial or freelance professional activity at the conclusion of the agreement, a period of barring of one year for new objects shall apply as a deviation, the sale being made at the exclusion of all warranty for second-hand objects of sale. In the event of malicious non-disclosure of defects or assumption of a guarantee for the properties, further-reaching claims shall remain unaffected.
- Claims from defects shall not originate if the defect is to be ascribed to a breach of operating, maintenance or installation directives, unsuitable or improper use, defective or negligent treatment and natural wear and tear or interventions against the object of delivery by the purchaser or by third parties.
- In the event of defective supplies, the purchaser’s claims from the Product Liability Act, tort, management of business without a commission shall remain unaffected. Property and service life guarantees must expressly be designated as such in detail.
- Liability for subsequent damage from defects shall only exist in the event of malice aforethought, gross negligence, culpable injury of life, limb and health, malicious non-disclosure and for claims according to the Product Liability Act.
- The following shall apply to the handling of remedying of a defect: the purchaser can make claims to remedy a defect with the vendor or other companies acknowledged by the vendor for attendance to the object of purchase; in the latter case, the purchaser shall inform the vendor. In the event of oral notification of claims, a written confirmation of the receipt of the notification shall be provided to the purchaser. If the object of purchase is incapable of operation due to a defect in quality, the purchaser shall contact the company ready to service approved by the vendor for attendance to the object of purchase closest to the location of the operationally incapable object of purchase. Replaced parts shall become the vendor’s property. The purchaser can make claims from defects in quality for the parts installed for the remedying of the defect until the expiry of the period of barring by limitation of the object of purchase on the basis of the purchase agreement.
- General limitation of liability: The vendor’s liability is exclusively based on the agreements made in the above sections. The purchaser’s claims to damage from culpa in contrahendo, breaches of subsidiary contractual duties and tort have been ruled out unless they are based on gross culpability by the vendor or one of its vicarious agents. These claims shall be barred half a year after receipt of the goods by the purchaser. If the vendor is obliged to indemnify damage caused by slight negligence according to the provisions of these terms on the basis of statutory provisions, the vendor’s liability shall be limited: liability shall only exist in the event of a breach of cardinal contractual duties and is limited to the typical damage foreseeable at the conclusion of the contract. This limitation shall not apply to an injury to life, limb or health. To the extent that the damage has been covered by an insurance concluded by the purchaser for the incident of damage in question, the vendor shall only be liable for all and any disadvantages for the purchaser connected therewith, e.g. higher insurance premiums or interest detriments until regulation of the damage by the insurance company. The same shall apply to damage caused by a defect in the object of purchase. Independent of the vendor’s culpability, all and any liability of the vendor for deceitful non-disclosure of the defect, from the assumption of a guarantee or a procurement risk and according to the Product Liability Act shall remain unaffected. Liability on account of arrears in delivery is definitively regulated in Section 4. Personal liability of the vendor’s statutory representatives, vicarious agents and employees for damage caused by them through slight negligence has been ruled out. If claims are made against the purchaser on account of liability dependent on culpability according to law which cannot be dispensed with towards third parties, the vendor shall guarantee towards the purchaser to the extent that it would be directly liable. The principles of § 254 BGB shall be applicable accordingly to the compensation of damage between the vendor and the purchaser. This shall also apply in the event of direct claims against the vendor. The indemnification duty has been ruled out to the extent that the purchaser for its part has effectively limited liability towards its customer. In this context, the purchaser shall endeavour also to agree limitations of liability in the vendor’s favour to a scope admissible by law. For measures by the purchaser to avert damage (for example, recall actions), the vendor shall be liable to the extent that it is legally obliged. The purchaser shall inform and consult the vendor extensively and without delay if it wishes to make a claim against it according to the aforementioned regulations. It shall give the vendor the opportunity of examining the incident of damage. The contracting parties shall coordinate the measures to be taken, in particular in composition negotiations.
- Place of performance, place of jurisdiction, applicable law: Place of performance and exclusive place of jurisdiction for supplies and payments and for all disputes resulting between the parties shall be the vendor’s registered office to the extent that the purchaser is a fully fledged merchant, a public-law entity or a public-law fund. Apart from this, the purchaser’s place of residence shall be deemed place of jurisdiction for all claims by the vendor against the purchaser to the extent that the latter is not a merchant. The relationships between the contracting parties shall exclusively be based on the law valid in the Federal Republic of Germany, ruling out Hague purchase law.
General terms and conditions of business