Area of applicability
1 These terms and conditions of sale shall apply in relation to entrepreneurs, legal persons under public law and public law special funds. Our deliveries and services shall take place exclusively on the basis of the terms and conditions below. Terms and conditions of the business partner which have not been expressly acknowledged by us shall not apply.
2 The contracting partners shall immediately confirm oral agreements on a case by case basis.
3 Orders shall not become binding until our order confirmation.
4 The statements and images contained in prospectuses and catalogues are approximate values customary in the sector, unless these have been expressly designated by us as being binding.
5 In case that a period of time of more than 6 months arises between conclusion of the sales agreement and the delivery date, ourselves and the contracting partner shall be entitled to request an adjustment to the price, taking such factors into account if and to the extent that significant changes, such as wage, material or energy costs and/or public duties arise, which influence the manufacturing and procurement costs. The right to request a price adjustment shall however be limited to 10% of the original net price.
6 Each contracting partner shall only use all documents (these also include samples, models and data) and knowledge which it obtains in connection with the business relationship for the joint purpose which is being pursued and will keep these secret in relation to third parties with the same care as their own documents and knowledge, should the other contracting partner designate these as being confidential or should the other partner have a justified interest in keeping these confidential. The obligation above shall commence at the first time of receipt of the documents or knowledge and shall cease 36 months after the end of the business relationship. Further statutory confidentiality obligations shall remain unaffected.
7 The obligation shall not apply to documents and knowledge which are generally known or were already known to the contracting partner at the time of receipt without it having been obliged to maintain secrecy or which are subsequently passed on by a third party which is authorised to carry out disclosure or which are developed by the receiving contracting partner without the use of documents or knowledge of the other contracting partner which must be kept confidential.
Images and descriptions
8 Should a contracting partner provide the other contracting partner with images or technical documents concerning the goods to be delivered or the manufacture, these shall remain the property of the disclosing contracting partner.
Special creations: Samples and production materials
9 Should the contracting partner order special creations in an individual case (Numbers 9 - 14) which we must therefore have manufactured for it, unless otherwise agreed we will charge the associated manufacturing costs for samples and production materials (work tools, forms, templates etc.) separately from the goods to be delivered. This shall also apply to production materials which need to be replaced due to wear and tear.
10 The costs of maintenance and proper storage, as well as the risk of damage or destruction of the production materials shall be borne by us.
11 Should the contracting partner suspend the co-operation during the manufacturing time for the samples or production materials, all manufacturing costs incurred up until this time shall be borne by the contracting partner.
12 Even if the contracting partner has paid for these, the production materials shall remain our property, at least until the supply contract has been performed. After this time, the contracting partner shall be entitled to request possession of the production materials, providing that a mutual agreement has been reached concerning the time of the handover and the contracting partner has complied with its contractual obligations in full.
13 We will store the production materials free-of-charge for three years after the final delivery to our contracting partner. After this time, we will issue a written request to our contracting partner, asking for a statement within 6 weeks concerning the further use of the production materials. Our obligation to store the production materials shall cease if no statement is received after the 6 weeks or if no new order is submitted.
14 Consumer related production materials may only be used by us for deliveries to third parties with the prior written agreement of the contracting partner.
15 Our prices are in Euros and are exclusive of value added tax, shipping, postage and insurance.
16 All invoices shall be due for payment within 14 days of the date of the invoice.
17 Should it not be disputed that we have delivered goods which are defective in part, our contracting partner shall be obliged to make payment for the part of the delivery which is not defective, unless the contracting partner has no interest in a partial delivery. The contracting partner shall only have the right to withhold payments or set these off against counterclaims if its counterclaims are undisputed or have been recognised by a court. This shall not apply to counterclaims of the contracting partner which are directly due to defect corrections or rescission of the contract - due to a defect which has not been corrected or which will not be corrected by us in the course of supplementary performance - and which relate to the same contractual relationship as our payment claim.
18 In case of payment default, we shall be entitled to claim default interest to the amount of 9 percentage points above the respective base rate of interest of the European Central Bank.
19 Should it become apparent after termination of the contract that our payment is endangered due to lack of payment capacity on the part of the contracting partner, we shall be entitled to immediately make all open claims due, also if cheques were deposited. This shall not apply if we have not yet provided the consideration which we owe. With the exception of the plea concerning the agreement of a later due date, objections and pleas of the contracting partner shall remain unaffected. Furthermore, we shall be entitled to make outstanding deliveries dependent on advance payments or suitable securities and to rescind all contracts in full or in part if these have not yet been performed, should a request concerning the provision of advance payments or securities not be complied with within a reasonable deadline.
20 Bills of exchange and cheques will only be accepted by agreement and by way of provisional performance and on condition of eligibility for discount. Discount expenses shall be charged from the day when the invoice amount becomes due. We do not accept responsibility for a timely presentation of checks and bills of exchange and for protesting a bill of exchange.
21 In relation to fee reductions, we refer to the current payment and conditions agreements.
22 Unless otherwise agreed, the delivery shall take place in German EXW (ex-works, Incoterms 2010) to the storage location in Henstedt-Ulzburg. The notification of readiness for dispatch or readiness for collection by us shall be decisive in relation to compliance with the delivery date or delivery deadline. In case of deliveries abroad, the regulations concerning costs and transfer of risk shall be agreed with the customer on a case by case basis.
23 The delivery deadline shall commence at the time of sending of our order confirmation and shall be reasonably extended if the prerequisites in Number 52 are present.
24 Partial deliveries are permitted to a reasonable extent. These shall be charged for separately.
25 Within a tolerance level of 10 percent of the total order quantity, additional or reduced deliveries for reasons connected to the manufacturing process are permitted. The overall price will be amended according to the scope of the additional or reduced deliveries.
Shipping and transfer of risk
26 The contracting partner must immediately take possession of goods which have been declared as being ready for shipping. Otherwise, we shall be entitled to choose between shipping the goods or storing these at the expense and risk of the contracting partner according to our own discretion. Also in case of any prepaid delivery which has been agreed in an individual case, any shipping in this respect shall take place at the risk of the contracting partner.
27 Should goods which have been declared as being ready for shipping not be accepted in accordance with the contract, the risk shall be transferred to the contracting partner at the time of notification of readiness for dispatch and the purchase price shall become due. In the absence of a special agreement, we will choose the means of transport and delivery route in case collection does not take place or in individual cases, the agreed manor of shipping is not possible.
28 Should it be foreseeable to us that the goods cannot be delivered within the delivery deadline, we shall immediately inform the contacting partner of such in writing and endeavour to state the expected time of delivery.
29 Should the delivery be delayed due to reasons stated in Number 52 or due to behaviour or omissions on the part of the contracting partner, an extension of the delivery deadline which is reasonable in the circumstances shall be granted.
30 In case of delivery delay, the contracting partner shall be entitled to rescind the contract in accordance with the statutory requirements. Should we enter default in relation to the delivery and should the contracting partner suffer a loss as a result, it shall be entitled to demand fixed delay compensation to the exclusion of the reimbursement of further losses caused by delay. For each full week of delay, this shall amount to 0.5%, however a maximum total of 5% of the value of the respective part of the total delivery which cannot be put into use on time or which cannot be put into use in accordance with the contract as a result of the delay. Conclusions of contract with merchants shall take place in reservation of self-supply and the presence of any necessary official permits.
Reservation of ownership
31 We shall reserve ownership of the delivered products until full payment of all claims under the business relationship with the contracting partner.
32 The processing or alteration of the goods subject to reservation of ownership by the contracting partner shall always take place following an engagement by us, without any obligations arising as a result We shall be entitled to the ownership in the new items in their respective state of alteration or processing. Should our goods which are subject to reservation of ownership be processed, altered, blended, mixed or combined with other products which do not belong to us, we shall be entitled to co-ownership in the new item to the relationship between the invoice price of the goods subject to reservation of ownership and the invoice price of the other products.
33 The contracting partner may sell the goods subject to reservation of ownership in relation to which the sole or co-ownership is held by us in the course of normal business dealings; the contracting partner shall not be permitted to pledge the said goods or provide these as security or assign these as security. The contractor hereby now assigns to us and in advance all claims to which it is entitled under the selling on of the goods subject to reservation of ownership or the products which are created due to the processing, alteration, blending, mixing or connection. This shall also apply should the products be sold for a total price together with products which do not belong to us. Should a third party have acquired ownership or co-ownership rights in the products under statutory regulations as a result of processing, alteration, blending, mixing or connection, the contracting partner also hereby now assigns to us and in advance the claims against the third party to which it is entitled. Assignments as defined in this paragraph shall only take place to the amount of the invoice price of the goods which are subject to reservation of ownership. The contracting partner shall be entitled to collect the assigned claims up until revocation which is permitted at any time.
34 We hereby now accept the assignments of the contracting referred to above.
35 Following a request by the contracting partner, we shall be obliged to release the securities to which we are entitled in accordance with the provisions above according to our choice, to the extent that their value exceeds the claims to be secured by more than 10%.
36 Should the effectiveness of the reservation of ownership require the co-operation of the contracting partner, for example in case of registrations which are required in accordance with the laws of the country of the contracting partner, the contracting partner must carry out such actions.
37 Should the contracting partner be in default with a payment, we can refuse the contracting partner the disposal of the goods subject to reservation of ownership in full or also in part depending on our choice, for example only the sale or further processing, etc.
38 Should the objective requirements for the requirement to file an application for insolvency be present on the part of the contracting partner, the contracting partner must refrain from any disposals concerning the goods subject to reservation of ownership of any kind, without the need for a corresponding request. The contracting partner shall be obliged to immediately notify us of the inventory of goods subject to reservation of ownership. In such a case, we shall also be entitled to rescind the contract and demand the surrender of the goods subject to reservation of ownership. Should the goods subject to reservation of ownership have been processed, altered, blended, mixed or combined with other products, we shall be entitled to demand surrender to a trustee; the contracting partner shall be obliged to name all co-owners in the goods subject to reservation of ownership, including their company or name, address and co-ownership share. The same shall apply accordingly to claims which are assigned to us in accordance with the paragraphs above; in addition, the contracting partner must forward us the names and addresses of all debtors, as well as the documents which set out the claims against them as a copy, without the need for a request to be issued.
39 The quality of the goods shall be determined exclusively in accordance with the agreed technical delivery regulations. Should we be required to provide delivery in accordance with images, specifications, samples etc. of our contracting partner, the contracting partner shall also assume the risk of suitability for the intended purpose of use.
40 We do not accept any liability for material defects caused by unsuitable or improper use, defective assembly or putting into operation by the contracting partner or third parties, usual wear and tear, incorrect or negligent treatment, as well as for the consequences of incorrect alterations or maintenance work of the contracting partner or third parties which has been carried out without our consent.
41 All defect claims of the contracting partner shall be time barred within 12 months, calculated from the time of transfer of risk. Defects to construction work or items of construction works (§ 438 Number 2 of the German Civil Code - BGB) or work contract related construction defects (§ 634 a Number 2 BGB) shall be excluded from the above - these shall be time barred within 5 years of the time of transfer of risk The above-mentioned shortened limitation period shall not apply to damages claims which are due to defects to the sold item or due to a breach of a supplementary performance obligation. The above exceptions for damages claims shall however only apply to damages claims which are connected to an injury to life and limb, body or health, which are due to grossly negligent or intentional behaviour on the part of the seller or to liability under the German Product Liability Act (Produkthaftungsgesetz). The provisions concerning entrepreneur recourse in case of the sale of consumable goods (§§ 478, 479 BGB) shall remain unaffected thereby.
42 Should an acceptance of the goods or an initial sample inspection have been agreed, the raising of defect complaints which the contracting should have observed in case of a careful acceptance or initial sample inspection shall be excluded.
43 We shall be given the opportunity to investigate the defects in relation to which a complaint has been raised. Goods in relation to which an objection has been raised shall be sent back to us immediately on request; we will pay the transportation costs, should the defect complaint be justified. Should the contracting partner be a merchant, the investigation and complaint obligation in accordance with § 377 of the German Commercial Code (HGB) shall apply, with the proviso that only defect notifications within 7 days of the discovery of a defect or from the time when such a defect would have been discovered in case of a feasible inspection shall be considered “immediate”. Screws, nuts and other threads and standard parts will be delivered by us in accordance with the applicable technical norms, unless separate agreements have been concluded.
44 In case of justified, timely defect complaints, we will either improve the goods in relation to which a complaint has been raised or deliver a flawless replacement. Should the contracting partner or one of its commercial consumers have integrated the goods into another item or combined these with another object, we shall not be obliged within the framework of supplementary performance to reimburse the costs for the removal of the defective item or for the installation or combination of the defect-free object.
45 Should we fail to comply with the above obligations or should we not comply with these in accordance with the contract within a reasonable period of time, the contracting partner can set us a final deadline in writing, within which we must comply with our obligations. Following the fruitless expiry of the said deadline, the contracting partner can demand a reduction of the price, rescind the contract, carry out the necessary improvements itself at our expense and risk or have the necessary improvements carried out by a third party at our expense and risk. A cost reimbursement shall be excluded if the expenses increase due to the goods having been moved to a different location following our delivery, unless this corresponds to the use of the goods in accordance with the provisions of the contract.
46 Statutory recourse claims of the contracting partner against us shall only exist to the extent that the contracting partner has not entered into any agreements with its consumer which go beyond the statutory defect claims.
Other claims, liability
47 Damages claims against us of any kind shall be excluded, unless intent or gross negligence or a breach of an essential contractual obligation are present.
48 An essential contractual obligation as referred to above is any obligation whose fulfilment is essential for the proper performance of the contract and on whose compliance the contracting partner may regularly rely.
49 However the liability shall be limited to reimbursement of losses which are typical of the contract and foreseeable, unless intent is present.
50 The above-mentioned limitations and exclusions of liability shall not apply to liability in accordance with product liability laws or in case of injury to life, body or health.
51 Claims of the contracting partner to the reimbursement of expenses in accordance with § 284 BGB shall be excluded, to the same extent as reimbursement of losses in lieu of performance in accordance with the provisions above.
52 Force majeure, labour disputes, civil disturbances, official measures, failure of our suppliers to provide deliveries and other serious unforeseeable events which cannot be defended against shall release the contracting partners from their obligations to provide performance for the duration of the disruption and to the extent of its effect. This shall also apply if the said events occur at a time in which the party concerned is in default, unless it has caused the delay intentionally or in gross negligence. The contracting partners shall be obliged to provide the necessary information and adjust their obligations to the changed circumstances in good faith, within the framework of what is reasonable.
Place of performance, place of jurisdiction and applicable law
53 In reservation of the paragraph below, the following shall apply: The exclusive place of jurisdiction shall be Hamburg, Germany, should the contracting partner be a merchant, legal person under public law or a legal special fund or should the contracting partner not have a general place of jurisdiction in Germany.
54 However should the contracting partner maintain its place of business outside of the European Union, the following provision shall apply in deviation from the paragraph above: All disputes which are connected to the respective contract or which concern its validity shall be finally settled by the court of arbitration of the Chamber of Commerce of Hamburg, to the exclusion of the regular courts. The place of arbitration shall be Hamburg, Germany. The language of the proceedings shall be German. The proceedings and, in particular, the taking of evidence shall take place in accordance with the rules of the regulator of the court of arbitration of the Chamber of Commerce of Hamburg and in accordance with the rules of the 10th Book of the German Code of Civil Procedure (ZPO). The procedural principles of common law, such as so-called document production, shall not have any direct or corresponding applicability. Should one of the parties be required to reimburse any lawyer’s costs in connection with the arbitration proceedings, these shall be limited to the costs which can be charged under the German Lawyers’ Fees Act (RVG) - “statutory fees”.
55 The place of performance for all contractual obligations, including any warranty claims, shall be Henstedt-Ulzburg, Germany.
56 The law of the Federal Republic of Germany shall apply, to the exclusion of the United Nations Convention governing the International Sale of Goods (CISG).
57 Secrecy must be maintained in relation to all commercial and operational processes, facilities and business relationships, also after the end of the co-operation.
58 The Contractor shall immediately inform us of any changes to the contact details.
As of: June 2017
Achilles Seibert GmbH · Philipp-Reis-Straße 3 · 24558 Henstedt-Ulzburg, Germany
Phone: +49 4193 8955 · Fax: +49 4193 895 699 · E-Mail: email@example.com