English version see below
The latest version of these T&Cs applies for all contracts concluded between the purchaser and ourselves for the delivery of goods. They also apply for all future business relations, even if they are not expressly agreed again at the time. T&Cs of the purchaser that deviate from, contradict or supplement these T&Cs only become an integral part of the contract if we have recognized them as such in writing. The following terms of sale also apply if we carry out the purchaser’s order without reservation, even though we are aware of T&Cs of the purchaser that contradict or deviate from these T&Cs.
II. OFFER AND CONCLUSION OF CONTRACT
1. Our offers are without obligation and non-binding, unless we have expressly designated them as being binding.
2. An order placed by the purchaser is deemed to be a binding offer to conclude a sales contract. We can accept this offer within two weeks by sending a confirmation of the order or by dispatching the ordered products within the same period.
3. The contract concluded with us conclusively describes all agreements reached between ourselves and the purchaser. Any product descriptions, documents or technical data are only deemed to be quality characteristics if they have been expressly designated as such in the contract. Notwithstanding the above, variations and alterations that are customary in the trade, which are the result of legal regulations, are allowed and do not constitute an amendment or supplement to the contract provided they do not affect the utilization for the purpose intended in the contract.
III. TERMS OF PAYMENT
1. Our prices are ex works without packaging and any other costs, unless otherwise determined in the distributor agreement or the confirmation of the order, plus statutory value-added tax. This will be shown separately in the invoice.
2. Our invoices are due immediately on receipt without any deductions, unless any special terms have agreed with the purchaser. We reserve the right to demand shipment against advance payment in the case of new customers. Furthermore, we may verify the purchaser’s credit rating in justified cases, e.g. by requesting credit information from Schufa or a different kind of evaluation. Payment will be deemed to have been effected only after we are able to dispose of the amount. If a payment is made by check, this will be deemed to have been effected only when the check has been cleared.
3. The purchaser is only entitled to set-off or exercise a right of retention if the counterclaims have been legally established, acknowledged by us or are indisputable.
4. We can demand payments in advance or securities if circumstances become known after the contract has been concluded that raise doubts as to the purchaser’s reliability, in particular their financial solvency. We are entitled to cancel the contract if the purchaser has provided false information about their credit standing or if the credit standing does not exist based on objective data. The purchaser is not allowed to claim for compensation as a result of this cancellation.
5. If the service is rendered in accordance with the contract more than four months after the contract was concluded, and if our prices have changed in the meantime, we are entitled to demand the adjusted list price without the purchaser being entitled to a right of withdrawal.
IV. DELIVERY AND PERFORMANCE PERIOD
1. Delivery dates or deadlines are always non-binding unless they have been agreed with binding force or their binding character arises from the circumstances. The delivery dates and deadlines we quote will always be postponed if anything has to be clarified with the purchaser or if the purchaser does not fulfill their obligations from this contract properly and in due time.
2. If the sales contract on which this is based is a sale to be performed at a fixed point in time within the meaning of § 286 (2) No. 1 BGB (German Civil Code) or § 376 HGB (German Commercial Code), we shall be liable in accordance with the statutory regulations for any delay in delivery for which we are responsible.
If this is not the case, the purchaser can demand that we deliver within a period of at least four weeks if we exceed a non-binding delivery date or deadline. We shall be in default on expiry of his period, provided we are responsible for the delay in delivery.
In every case, our liability is limited to the foreseeable damage that typically occurs, unless the delay in delivery is due to an intentional and grossly negligent violation of the contract for which we can be held responsible. Section VII 3 applies accordingly.
3. Any further liability for a delay in delivery for which we can be held responsible is excluded.
4. We are entitled to effect part deliveries and partial services as long as this is reasonable for the customer.
5. If the purchaser is in default of acceptance, we are entitled to demand compensation for the loss incurred and any additional expenses. The same applies of the purchaser culpably violates any other obligations to cooperate. In the event of delayed acceptance of delivery or the debtor's default, the risk of accidental damage and loss shall pass to the purchaser.
V. TRANSFER OF RISK - SHIPMENT/PACKAGING
1. Loading and shipping shall be without insurance at the purchaser’s risk. We make every effort to take the purchaser’s wishes and interests as regards shipping method and transport route into account; an extra costs incurred as a result of this - even if a carriage-free delivery has been agreed - will be charged to the purchaser. The risk of deterioration or accidental loss is transferred upon delivery, or in the event of a sale by dispatch, on surrender of the goods to the carrier or any other person commissioned with the dispatch. This also applies if we have assumed the costs of shipping or effect delivery with our own vehicles.
2. The purchaser is responsible for disposing of the packaging.
3. If shipping is delayed at the request of or as the result of culpable actions by the purchaser, we shall store the goods at the expense and risk of the purchaser. In this case, the notification of readiness for shipping shall be deemed the equivalent of a dispatch.
4. The delivery can be covered by a transport insurance at the purchaser’s request and expense.
1. Warranty claims by the purchaser only come into existence if the purchaser has properly fulfilled their inspection and complaint obligations, including damage during transportation, in accordance with § 377 HGB (German Commercial Code).
2. If the goods are faulty for reasons for which we can be held responsible, we will either remedy the defect (rework) or deliver new goods (subsequent delivery) within a reasonable period at our discretion. We will bear the expenses necessary to remedy the defect as long as these do not rise because the contractual item is at a place other than the place of performance. if the subsequent performance fails despite two attempts, the purchaser can either reduce the purchase price or terminate the contract in the event of a more than negligible defect.
The purchaser’s right to assert claims for damages depends on the regulations in Section VII.
Normal wear and tear do not justify warranty claims.
3. The purchaser’s warranty claims become statute-barred one year after delivery of the goods to the purchaser unless we have maliciously concealed the defect. Our obligations from Section VI (4) and Section VI (5) remain unaffected by this.
4. Even if a grace period has not been established as is usually required, we are still obliged to reimburse the purchaser for the expenses paid to his customers due to the defects of the new movable object sold in accordance with §§ 439 (2) or (3), 475 (4) and (6). In the event of a defect in a consumer goods purchase, we shall continue to provide compensation at our discretion by either taking back the item or reducing (lowering) the purchase price. The above claims are excluded if the purchaser has not properly fulfilled his inspection and complaint obligations in accordance with Section 377 of the German Commercial Code.
5. The obligation in accordance with Section VI (4) is excluded if the defect is due to advertising statements or other contractual agreements that do not originate from us or if the Purchaser has given the end user a special warranty. The obligation is also excluded if the purchaser himself was not obliged to exercise the warranty rights vis-a-vis the end user on account of the statutory regulations or did not complain about a claim that was asserted against them. This also applies of the purchaser has assumed warranties vis-a-vis the end user above their statutory obligation.
VII. INDEMNITY, DISCLAIMER
1. We accept unlimited liability in accordance with the statutory provisions for injury to life, body or health that are due to a grossly negligent or willful breach of duty by ourselves, our legal representatives or vicarious agents as well as for damages that are covered by the product liability act.
In cases of slight negligence, we are liable for any foreseeable damage that might typically occur in the event of a violation of a material contractual obligation.
2. To the extent that we have given a warranty on the quality or service life the good or parts thereof, we shall also be liable within the scope of this warranty. However, we shall only be liable for damages based on the absence of the warranted quality or service life, but that do not occur directly on the goods if the risk of such damage is obviously covered by the warranty of quality and service life.
3. Insofar as our liability is excluded or limited, this also applies for the personal liability of our employees, workers, collaborators, representatives and vicarious agents.
4. Claims for damages on the part of the purchaser due to a defect become statute-barred one year after delivery of the goods. This shall not apply in the event of injury to life, limb or health for which we, our legal representatives or our vicarious agents are responsible, or if we, our legal representatives or our vicarious agents have acted with intent or gross negligence.
5. In the case of force majeure, i.e. events which are beyond the control of either party (war, revolution, a (terrorist) attack, epidemics, natural catastrophes or strikes) that prevent the provision of services, each party is released from the service obligation for the duration of force majeure. The contract period is extended by the length of the interruption caused by force majeure. If the force majeure period is likely to be longer than three months, both parties can withdraw from the contract.
VIII. RETENTION OF TITLE
1. The delivered goods (reserved goods) shall remain our property until all claims, including all current account balance claims, to which we are entitled against the purchaser now or in the future have been satisfied. If the purchaser acts in breach of contract, e.g. default in payment, we are entitled to take back the reserved goods after setting a reasonable deadline in advance. The repossession or seizure of the reserved goods constitutes a withdrawal from the contract. We are entitled to utilize the reserved goods after their return. After deduction of a reasonable amount for the costs of utilization, the proceeds thereof shall be set off against the amounts owed to us by the purchaser.
2. The purchaser shall treat the reserved goods with care and insure them sufficiently at their replacement value against damage by fire, water and theft at their own expense. Any maintenance and inspection work that becomes necessary shall be carried out by the purchaser in due time at their own expense.
3. The purchaser is entitled to sell and/or use the reserved goods correctly in the course of business as long as they are not in default of payment. Pledges or transfers of ownership by way of security are not allowed. The purchaser already assigns any claims arising from the resale or on other legal grounds (insurance, tort) with regard to the reserved goods (including all balance claims from current account) to us in full by way of security; we hereby accept the assignment. We revocably authorize the purchaser to collect the claims assigned to us for their account and in their own name. The authorization to collect these claims can be revoked at any time if the purchaser does not fulfill their payment obligations correctly. Neither is the purchaser authorized to assign this claim for the purpose of collecting the claim by way of factoring unless the factor is simultaneously obligated to pay the consideration in the amount of the claims directly to us for as long as we still have claims against the purchaser.
4. Any processing or transformation of the reserved goods by the purchaser shall in any case be carried out on our behalf. If the reserved goods are processed with other items that do not belong to us, we shall acquire co-ownership of the new item at the ratio of the value of the reserved goods (final invoice amount including VAT) to the other processed items at the time of processing. The same shall apply to the new item created by processing as to the reserved goods. If the reserved goods are inseparably mixed with other items that do not belong to us, we shall acquire co-ownership of the new item at the ratio of the value of the reserved goods (final invoice amount including VAT) to the other mixed items at the time of mixing. If the purchaser's item is to be regarded as the main item as a result of the mixing, the purchaser and we agree that the purchaser shall transfer co-ownership of this item to us on a pro rata basis; we hereby accept the transfer. The purchaser shall hold our sole or co-ownership of an item thus created in safe custody for us.
5. In the event of access by third parties to the reserved goods, in particular seizures, the purchaser shall point out our ownership and notify us immediately so that we can enforce our proprietary rights. Insofar as the third party is unable to reimburse us for the court or out-of-court costs incurred in this connection, the purchaser shall be liable for these.
6. We are obligated to release the securities to which we are entitled if the realizable value of our securities exceeds the claims to be secured by more than 10%; in this context, we shall be responsible for selecting the securities to be released.
IX. INDUSTRIAL PROPERTY RIGHTS
Our products, logos, symbols, images, designs and other documents are protected by trademark and copyright laws. Our consent must be obtained before every use. Removal of our trademarks and copyright notices from our products or other documents constitutes a serious breach of contract and entitles us to terminate all existing agreements between us (including dealer and payment agreements) without notice.
X. PLACE OF PERFORMANCE, PLACE OF JURISDICTION, APPLICABLE LAW, MISCELLANEOUS
1. German law applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods and the regulations on private international law. The place of performance and jurisdiction for any disputes arising between us and the purchaser from the agreements and contracts concluded between us and them is Cologne. However, we are also entitled to institute legal proceedings against the purchaser at their place of residence and/or business.
2. Should one or several of these provisions be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions.