General terms and conditions

I. General

The present terms are the basis for all goods and services as well as for any separate contractual agreements. Any deviating business terms by the purchaser will not become part of the contract even upon acceptance of the order.

II. Self-Supply Proviso

The right to correct and timely self-supply is reserved. The Contractor will inform the Client immediately of the non-availability of the delivery item and in the case of rescission immediately compensate the Client.

III. Payment Terms and Make-Up Performance Proviso

Remuneration will be due to the full amount upon delivery/inspection and acceptance of the goods. The Client will be regarded as being in arrears with payment without further declarations by the Seller 10 days after the payment deadline where he has not yet paid. In the case of defects, the Client will not have a right of retention unless the delivery is visibly defective/the Client has an obvious right to refuse the acceptance of the work. In such a case the Client will only be entitled to retention to the extent that the amount withheld is adequate proportion to the defects and anticipated costs of make-up performance (in particular of defect rectification.) The Client will not have the right to assert claims and rights due to defects where the Client has not made any payments that are due and the amount due (including any payments made) is in an adequate proportion to the value of the defective delivery/work.

IV. Comprehensive Retention of Title

1. The delivery item will remain the property of the Contractor until satisfaction of all claims against the Client from the business relationship.
2. The Client is permitted to process the delivery item or to mix or combine it with other items. The processing, mixing or combination (hereinafter referred to as “Processing” and “processed” with regard to the delivery item) will be done on behalf of the Contractor; the item produced from the processing is designated as “new goods”. The Client will store the new goods for the Contractor with the care of a prudent businessman.
3. In the case of processing of other items not belonging to the Contractor the Client will be entitled to a share in the ownership of the new goods to the amount of the share resulting from the ratio of the value of the processed delivery item to the value of the remaining processed goods at the time of the processing. To the extent that the Client acquires sole ownership of the new goods Contractor and Client agree that the Client grants the Contractor a share in the new goods on the basis of the ratio of the value of the processed delivery item to the remaining processed goods at the time of the processing.
In the case of the sale of the delivery item or new goods the Client hereby cedes his claim from the resale against the customer with all ancillary rights to the Contractor as security without the requirement of further separate declarations. The assignment will apply including any balance claims. However, the assignment only applies with regard to the amount equivalent to the price of the delivery item charged by the Contractor. The share in the claim assigned to the Contractor must be satisfied as a priority.
4. Where the Clientcombines the delivery item or new goods with plots of land or moveable items he is also ceding his remuneration claim he is entitled to for the combination together with all ancillary rights as security to the amount of the ratio of the value of the delivery item/new goods to the remaining combined goods at the time of the combination to the Contractor without requirement of further separate declarations.
5. The Client has the right to collection of claims assigned on the basis of the present retention of title. The Client will immediately transfer the payments made on the assigned claims to the Contractor to the amount of the secured claim. Where there is a relevant ground, in particular in the case of delayed payment, suspension of payment, instatement of insolvency proceedings, protest of bills of exchange or legitimate indications of overindebtnedness or impending insolvency by the Client, the Contractor will have the right to revoke the Client’s collection authorization. Moreover, the Contractor may disclose the security assignment, use the assigned claims as well as demand disclosure of the security assignment by the Client from the customer after prior setting of an adequate deadline.
6. Where there is a credible legitimate interest the Client must provide the Contractor with the necessary information and documents for asserting his rights.
7. While the retention of title applies the Client is prohibited from the pledging or assignment of collateral. Resale is only permitted to retailers in proper business transactions and only subject to the term that payment of the equivalent value of the delivery item is made to the Client. The Client must also agree with the customer that the customer only acquires the delivery item after this payment. In the case of pledging, seizure or other disposals or interventions by third parties the Client must inform the Contractor immediately.
8. To the extent that the realizable value of all security rights the Contractor is entitled to exceed 10% the Contractor will release a corresponding portion of the security rights at the request of the Client. It is assumed that the prerequisites in the aforementioned clause have been met where the estimated value of the goods assigned as security and the assigned claims attains or exceeds 150% of the value of the secured claims. The Contractor is free to choose among the different security rights upon release.
9. In the case of breaches of duty by the Client, in particular payment delay, the Contractor will have the right to demand release of the delivery item/new goods and/or rescind the contracteven without stipulation of a deadline; the Client is obligated to release the goods. The request for the release of the delivery item/new goods does not constitute a declaration of rescission by the Contractor unless expressly declared as such.

V. Exclusion of New Service

Within the scope of make-up performance, the Contractor is in no way obligated to provide a new delivery/new production. Where the make-up performance fails the Client has the right to reduce the price, provided that construction work is not the subject of defect liability, or to rescind the contract. The application of § 478 Sect.1 BGB (recourse claim by the entrepreneur) will remain unaffected. The Client’s right to demand damage compensation in lieu of performance in accordance with the provisions of the law and the present terms will also remain unaffected.

VI. Contractor’s Options

The Contractor has the right to choose between defect rectification and replacement delivery/replacement of work in every case. Where the make-up performance fails the Client will have the right to reduce the price or, where construction work is not the subject of defect liability, to rescind the contract. The application of § 478 Sect. 1 BGB (recourse claim by the entrepreneur) will remain unaffected. The Client’s right to demand damage compensation in lieu of performance according to the provisions of the law and the present terms will also remain unaffected.

VII. Two Rectification Attempts

Where the Client opts to pay compensation in lieu of performance or carry out the performance himself, a rectification attempt will only be deemed unsuccessful after the second attempt. The statutory cases of dispensability of setting a period of grace will remain unaffected.

VIII. Overburdening of the Make-Up Performance Expenses

The necessary expenses for make-up performance will be borne by the Client to the extent that they increase due to the fact that the deliveries are made to a site other than the Client’s establishment unless the transport is in line with their designated use.

IX. Exclusion of Liability in the Sales GBT (excl. Delayed Delivery/Infeasibility)

1. In the case of willfulness or gross negligence by the Contractor or his representative or vicarious agent the Contractor will be liable in accordance with the law. In other respects, the Contractor will only be liable according to the Product Liability Act due to injury to life, limb or health or due to culpable breach of cardinal contractual duties. The damage compensation claim for the breach of cardinal contractual duties will however be limited to typical, foreseeable damage unless there is one of the exceptions cited in Clause 1 or 2 of the present para. 1. The Contractor’s liability is also limited to typical, foreseeable damage in cases of gross negligence unless there is an exception as cited in Clause 2 of the present para. 1.
2. The provisions of the above para. 1 apply to all damage compensation claims (in particular to damage compensation in addition to performance and damage compensation in lieu of performance), regardless of the legal ground, in particular due to defects from the breach of duties from the debt relationship or illegal act. They will also apply to the claim to compensation of fruitless expenditure. Liability for delay is regulated according to Item 10, liability for infeasibility according to Item 11.
3. A change in the burden of proof to the detriment of the Client is not associated with the above regulations.

X. Limitation of Liability due to Delayed Delivery

The Contractor will be liable according to the law in the case of delayed performance where there is willfulness or gross negligence by the Contractor or a representative or vicarious agent. However, in the case of gross negligence, liability by the Contractor will be limited to typical, foreseeable damage. Outside of the cases set out in Clause 1, liability by the Contractor due to delayed performance for damage compensation in addition to performance will be limited to a total of 5 % and for damage compensation in lieu of performance to a total of 10% of the value of the delivery; further-reaching claims by the Client are excluded even after expiration of a period of grace for performance set for the Contractor.

The above restrictions will not apply in the case of liability due to injury to life, limb or health. A change of the burden of proof to the detriment of the Client is not associated with the above provisions. The above provisions will also apply to the claim to compensation for fruitless expenditure.

XI. Limited Liability in the Case of Infeasibility

In the case of infeasibility of delivery the Contractor will be liable according to the law where there is willfulness or gross negligence by the Contractor or a representative or vicarious agent. However, the Contractor’s liability in cases of gross negligence is limited to typical, foreseeable damage.

Outside of the cases set out in Clause 1 the Contractor’s liability due to infeasibility for damage compensation and compensation of fruitless expenditure will be limited to a total of 5% of the value of the delivery. Any further-reaching claims by the Client due to infeasibility of the delivery are excluded. The above restrictions will not apply where liability is assumed for injury to life, limb or health. The Client’s right to rescind the contract will remain unaffected. A change of the burden of proof to the detriment of the Client is not associated with the present provisions.

XII.  Exclusion of the Right of Rescission and Decision Obligation

The Client may only rescind the contract within the framework of the statutory provisions if the Contractor is responsible for the breach of duty; in the case of defects, however, the statutory prerequisites will continue to apply. In the case of breaches of duty, the Client must declare within an adequate period after request by the Contractor if he will rescind the contract due to the breach of duty or insist on the delivery.

XIII. Reduced Statute of Limitations in the Case of Contractual Work Performance/Purchase Contract for New Items

1. The statute of limitations for claims and rights due to defective deliveries, regardless of the legal ground, is one year. However, this will not apply in the cases of § 438 Sect. 1 Nr. 1 BGB (legal defects in the case of immoveable assets), § 438 Sect. 1 Nr. 2 BGB (construction work, items for construction work), § 479 Sect. 1 BGB (recourse claim by the entrepreneur) or § 634 a Sect. 1 Nr. 2 BGB (construction work or work whose success consists in the rendering of planning and monitoring services).  The deadlines specified in Clause 2 above are subject to a statute of limitations of three years.
2. The statute of limitation periods set out in Sect. 1 will also apply to all damage compensation claims against the Contractor in association with the defect, regardless of the legal foundation of the claim. To the extent that there are damage compensation claims of any kind against the Contractor which are not associated with a defect, the statute of limitations set out in para. 1 Clause 1 will apply.
3. The statute of limitation periods set out in paras. 1 and 2 will apply subject to the following proviso:

3.1. The statute of limitation periods generally do not apply in the case of willfulness or willful concealment of a defect [or to the extent that the Seller assumed a guarantee for the features of the delivery item].

3.2. The statute of limitations will furthermore not apply to damage compensation in cases of injury to life, limb, health or freedom, in the case of claims according to the Product Liability Act, in the case of a gross negligent breach of duty or in the case of breach of cardinal contractual duties.

4. The statute of limitations will commence for all claims upon delivery, in the case of contractual work, upon inspection and acceptance of the work.
5. Unless explicitly specified otherwise, the statutory provisions on the commencement of the statute of limitations, suspension of expiry, suspension and recommencement of deadlineswill remain unaffected.
6. A change in the burden of proof to the detriment of the Client is not associated with the above provisions.

VIV. Increased Default Interest

In the case of delayed payment, the Contractor has the right to charge default interest of nine percentage points above the basic interest rate (§ 247 BGB) [ The Client may provide proof that no damage or significantly less damage was incurred to the Contractor.] The Contractor may prove that greater damage was incurred.

XV. Place of Jurisdiction (Purchase/Sale GBT)

The exclusive place of jurisdiction where the contractual partner of the clause user is a businessman is the Contractor’s domicile for all disputes arising from the contract.

XVI. Applicable Law

German law excluding the UN Sales convention will apply to legal relations between the parties.