§ 1 Scope
(1) These Terms and Conditions of Sale shall apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB) of the Federal Republic of Germany. We shall only recognise terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale if we expressly agree to their validity in writing.
(2) These Terms and Conditions of Sale shall also apply to all future transactions with the Purchaser, insofar as these are legal transactions of a related nature.
(3) Individual agreements made with the purchaser in individual cases (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these Terms and Conditions of Sale. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
§ 2 Offer and conclusion of contract
If an order is to be regarded as an offer in accordance with § 145 BGB, we may accept it within two weeks.
§ 3 Documents provided
We reserve the property rights and copyrights to all documents provided to the customer in connection with the placing of the order – also in electronic form – such as calculations, drawings, etc. These documents may not be made accessible to third parties. These documents may not be made accessible to third parties unless we give our express written consent to do so. If we do not accept the orderer’s offer within the period of § 2, these documents must be returned to us without delay.
§ 4 Prices and payment
(1) Unless otherwise agreed in writing, our prices are ex works excluding packaging and plus value added tax at the applicable rate. Costs of packaging shall be invoiced separately.
(2) Payment of the purchase price shall be made exclusively to the account specified in the order confirmation or invoice. The deduction of a discount is only permissible with a special written agreement.
(3) Unless otherwise agreed, the purchase price shall be paid within 10 days of delivery. Interest on arrears shall be charged at a rate of 8% above the respective base rate. We reserve the right to claim higher damages for default.
(4) Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries that take place 3 months or later after conclusion of the contract.
§ 5 Rights of retention
The customer is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 6 Delivery time
(1) The commencement of the delivery period stated by us presupposes the timely and proper fulfilment of the customer’s obligations. We reserve the right to plead non-performance of the contract.
(2) If the customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims. If the above conditions are met, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.
(3) In the event of a delay in delivery not caused by us intentionally or through gross negligence, we shall be liable for each completed week of delay within the framework of a lump-sum compensation for delay in the amount of 3% of the delivery value, but not more than 15% of the delivery value.
(4) Further legal claims and rights of the customer due to a delay in delivery remain unaffected.
§ 7 Transfer of risk in case of shipment
If the goods are shipped to the customer at the customer’s request, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon dispatch to the customer, at the latest upon leaving the factory/warehouse. This applies irrespective of whether the goods are dispatched from the place of performance or who bears the freight costs.
§ 8 Retention of title
(1) We retain title to the delivered item until full payment of all claims arising from the delivery contract. This shall also apply to all future deliveries, even if we do not always expressly refer to this. We shall be entitled to take back the object of sale if the customer acts in breach of contract.
(2) As long as ownership has not yet passed to him, the customer is obliged to treat the object of sale with care. In particular, he is obliged to insure it adequately at his own expense against theft, fire and water damage at replacement value. If maintenance and inspection work has to be carried out, the customer shall carry this out in good time at his own expense. As long as ownership has not yet been transferred, the customer must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. 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 of the German Code of Civil Procedure (ZPO), the purchaser shall be liable for the loss incurred by us.
(3) The purchaser is entitled to resell the reserved goods in the normal course of business. The purchaser hereby assigns to us the claims against the customer arising from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply irrespective of whether the purchased goods have been resold without or after processing. The customer remains authorised to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we shall not collect the claim as long as the customer 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.
(4) The processing or transformation of the object of sale by the customer shall always be carried out in our name and on our behalf. In this case, the customer’s expectant right to the object of sale shall continue in the transformed object. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the item of the customer is to be regarded as the main item, it shall be deemed agreed that the customer shall transfer co-ownership to us on a pro rata basis and shall keep the sole ownership or co-ownership thus created in safe custody for us. In order to secure our claims against the purchaser, the purchaser also assigns to us such claims against a third party which accrue to him through the combination of the reserved goods with a piece of real estate; we accept this assignment already now.
(5) We undertake to release the securities to which we are entitled at the request of the customer insofar as their value exceeds the claims to be secured by more than 20%.
§ 9 Warranty and notice of defects as well as recourse/manufacturer recourse.
(1) The purchaser’s warranty rights presuppose that the purchaser has properly fulfilled its obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
(2) Claims for defects shall become statute-barred 12 months after delivery of the goods supplied by us to our customer. The statutory limitation period shall apply to claims for damages in the event of intent and gross negligence as well as in the event of injury to life, body and health which are based on an intentional or negligent breach of duty by the user. Our consent must be obtained before any goods are returned.
(3) If, despite all due care, the delivered goods show a defect which was already present at the time of the transfer of risk, we shall, at our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. We shall always be given the opportunity to remedy the defect within a reasonable period of time. Claims under a right of recourse shall remain unaffected by the above provision without restriction.
(5) If the subsequent performance fails, the customer may – irrespective of any claims for damages – withdraw from the contract or reduce the remuneration. Claims for defects shall not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear as well as in the case of damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground or due to special external influences which are not assumed under the contract. If the purchaser or third parties carry out improper repair work or modifications, there shall also be no claims for defects for these and the resulting consequences.
(6) Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded insofar as the expenses increase because the goods delivered by us have subsequently been taken to a place other than the customer’s branch office, unless the transfer is in accordance with their intended use.
(7) The purchaser’s right of recourse against us shall only exist insofar as the purchaser has not entered into any agreements with its customer that go beyond the statutory mandatory claims for defects. Furthermore, paragraph 6 shall apply accordingly to the scope of the purchaser’s right of recourse against the supplier.
§ 10 Miscellaneous
(1) This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) The place of performance and exclusive place of jurisdiction and for all disputes arising from this contract is our registered office, unless otherwise stated in the order confirmation.
(3) All agreements made between the parties for the purpose of executing this contract are set out in writing in this contract.
(4) Should individual provisions of this contract be or become invalid or contain a loophole, the remaining provisions shall remain unaffected. The parties undertake to replace the invalid provision with a legally permissible provision that comes as close as possible to the economic purpose of the invalid provision or fills this gap.
Status: May 2021
Text source: Sample contract GTC of IHK Wiesbaden
This is the English translation of our General Terms and Conditions. In case of any inconsistencies the german version shall prevail.
This Agreement is governed by and construed in accordance with the laws of Germany.