General Business Terms and Conditions
We are neither legally obligated nor prepared to participate in dispute resolution proceedings before a consumer arbitration board. As such, the competent entity in this regard is, among others,
Georg-Schulhoff-Platz 1, 40221 Düsseldorf
Tel. 0211 8795-0
Fax 0211 8795-110
We are neither obliged nor prepared to participate in the European Commission’s online dispute resolution (ODR) in consumer matters. You can find this at http://ec.europa.eu/consumers/odr/
You will find the General Business Terms and Conditions (Terms and Conditions of Sale and Terms and Conditions of Purchase) of Karl Buschmann Maschinenbau GmbH below.
A. Terms and Conditions of Sale of Karl Buschmann Maschinenbau GmbH, version dated 08/12/2021
B. Terms and Conditions of Purchase of Karl Buschmann Maschinenbau GmbH, version dated 08/12/2021
These replace our previous GTC.
A. General Terms and Conditions of Sale of Karl Buschmann Maschinenbau GmbH
§ 1 Scope, Form
These General Terms and Conditions of Sale (GTCS) apply to all our deliveries, services and offers between us entrepreneurs (§ 14 of the German Civil Code), a legal entity under public law or a special fund under public law and - if applicable - to consumers (§ 13 of the German Civil Code).
The GTCS apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether the Seller manufactures the Goods itself or purchases them from suppliers (§§ 433, 650 of the German Civil Code). Unless otherwise agreed, the version of the GTCS valid at the time of the customer's order or in any case the version most recently communicated to it in text form shall also apply as a framework agreement for similar future contracts, without our having to refer to them again in each individual case.
Our General Terms and Conditions of Sale apply without exception. Deviating, conflicting or supplementary general terms and conditions of the customer shall only form part of the contract if and to the extent that we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the customer unconditionally with the knowledge of the customer's general terms and conditions.
Individual agreements made with customers in individual cases (including side agreements, addenda and amendments) shall in any case prevail over these GTCS. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
Legally relevant declarations and notifications from the customer regarding the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be set out in writing, i.e. in written or text form (e.g. letter, email, fax). Statutory requirements of form and further evidence, in particular in the event of doubts about the capacity of the person making the declaration, shall remain unaffected.
References to the validity of statutory provisions only have a clarificatory meaning. Even without such a clarification, statutory provisions shall therefore apply, where they are not directly amended or expressly excluded in these GTCS.
§ 2 Formation of the Contract
Our offers are subject to change and non-binding. This shall also apply if we have provided the customer with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - to which we reserve property rights and copyrights.
The customer's order of the goods is deemed a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 3 weeks of its receipt by us.
Acceptance can be declared either in writing (e.g. by order confirmation) or by delivering the goods to the customer.
Our order confirmation alone is decisive for the content of the contract, in particular the scope of services. All side agreements, amendments and additions shall only be valid if we confirm them in writing. Drawings, illustrations, dimensions, weights or other performance data are only binding where this has been expressly agreed in writing. We reserve the right to make technical changes to the design or manufacturing method.
§ 3 Delivery deadline and delivery default
The delivery period is agreed individually or is specified by us when the order is accepted. Where this is not the case, the delivery deadline is approx. 4 weeks from the conclusion of the contract.
Where we are unable to comply with binding delivery deadlines for reasons not imputable to us (Unavailability), we shall inform the customer of this immediately and shall simultaneously communicate the expected new delivery deadline. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will reimburse any payment already made by the customer without delay. Non-availability of the service within the meaning of this provision shall be deemed to be in particular the non-timely self-delivery by our supplier if we have concluded a congruent covering transaction, neither we nor our supplier are at fault or we are not obliged to procure goods in the individual case.
A delivery default on our part shall be determined in accordance with statutory provisions. However, a reminder from the customer is required in any case. Where we default in delivery, the customer may demand fixed compensation for the damage caused by default. The fixed compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of the delay, but in total not more than 5% of the delivery value of the goods delivered late. We reserve the right to prove that the customer did not suffer any damage at all or only a considerably lower damage than the above lump sum.
The rights of the customer pursuant to § 7 of these GTCS and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
We have the right to make partial deliveries if
- the customer can use the partial delivery within the scope of the contractual purpose;
- the delivery of the remaining ordered goods is ensured and
- the customer does not incur any considerable additional work or additional costs as a result (unless we declare ourselves willing to bear these costs).
We are also not liable for the impossibility of delivery or for delays in delivery, insofar as these are caused by force majeure or other events that were not foreseeable at the time of the conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in the quality of materials or energy, transport delays, lawful lockouts, shortage of labour, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of, incorrect or untimely delivery by suppliers), for which we are not responsible. If such events make it considerably more difficult or impossible for us to provide the delivery or service and the hindrance is not only temporary, we also have the right to withdraw from the contract. If hindrances are of temporary duration, the delivery or service deadlines will be extended or the delivery or service dates postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, they are entitled to withdraw from the contract by means of an immediate written declaration to us.
§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
Delivery is ex-warehouse, which is also the place of performance for the delivery and any subsequent performances. Upon request and at the expense of the customer, the goods will be shipped to another destination (sale to destination). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
The risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon delivery at the latest. However, regarding mail order purchases, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. Where acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly for an agreed acceptance. If the customer is in default of acceptance, this shall be equivalent to handover or acceptance.
In the event that the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, we have the right to demand compensation for the resulting damage including additional expenses (e.g. storage costs). We shall charge for this purpose a fixed compensation of 0.5% of the delivery value per calendar week or part thereof - limited to a maximum of 5% of the delivery value - beginning with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for dispatch.
Proof of higher damages and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) remain unaffected; the lump sum must, however, be set off against further monetary claims. The customer shall be entitled to prove that we have not sustained any losses at all or that such losses essentially amounted to less than the aforementioned fixed sum.
§ 5 Prices and payment terms
Unless otherwise agreed in individual cases, we shall be bound by the price contained in the offer for 30 days from the offer date. Prices are ex works, unless otherwise agreed, plus statutory value added tax plus packaging. The contractual partner shall be responsible for the disposal of the packaging at its own expense.
Regarding mail order purchases (§ 4 (1)), the customer shall bear the ex store shipping costs and the costs of any transport insurance it requires. Any customs duties, fees, taxes and other public charges are borne by the customer.
The purchase price is due and payable within 14 days from the date of invoice and delivery or acceptance of the goods. Where discounts are granted, the purchase price shall be due and payable within 10 days of the invoice date and delivery or acceptance of the goods. The date of receipt into our account is decisive. If received later, the discount will be forfeited.
We are entitled at any time, even as part of ongoing business dealings, to undertake a full or partial delivery only against advance payment. We declare a corresponding reservation at the latest with the order confirmation.
Upon expiry of the above payment period, the customer is in default. During the period of default, the purchase price shall bear interest at the statutory default interest rate applicable at the time. We reserve the right to assert further damages caused by delay. Our claim to commercial default interest (§ 353 of the German Commercial Code) against merchants remains unaffected.
The customer shall only be entitled to rights of set-off or retention to the extent that its claim has been legally established or is undisputed. In the event of a defective delivery, the customer's reciprocal rights shall remain unaffected, in particular pursuant to § 7(6) sentence 2 of these GTCS.
Where it becomes apparent following the contract’s conclusion (e.g. in the event of a filing for the opening of insolvency proceedings) that our claim to the purchase price is jeopardized by the customer's inability to pay, we shall be entitled to refuse performance in accordance with statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 of the German Civil Code). In the case of contracts for the manufacture of non-fungible items (custom-made products), we may declare withdrawal immediately; and statutory provisions on the dispensability of setting a deadline shall remain unaffected.
§ 6 Retention of title
6.1. Simple retention of title
We retain title to the goods until all of our claims against the customer arising from our business relationship, including future claims arising from simultaneously or subsequently concluded contracts have been settled. This shall also apply if individual or all of our claims have been included in a current invoice and the balance has been set off and acknowledged.
Goods subject to retention of title may not be pledged to third parties or assigned as security before the secured claim has been paid in full. In the event of seizure or other third-party interventions, the customer must notify us immediately in writing. Where the third party is not in a position to reimburse us for the judicial and extra-judicial costs of an action pursuant to § 771 of the German Code of Civil Procedure, the customer shall be liable for the loss we have incurred.
6.2. Extended retention of title in the event of resale with advance assignment clause
The customer may only resell the goods subject to retention of title in the ordinary course of business if it hereby assigns to us all claims accruing to it against buyers or third parties from the resale. Where goods subject to retention of title are sold unprocessed or after processing or combination with items which are the customer’s exclusive property, the customer hereby assigns to the Seller the claims arising from the resale in full. Where the customer sells goods subject to retention of title - after processing/combination - together with goods not belonging to us, the customer hereby assigns the claims arising from the resale equivalent to the value of the reserved goods with all ancillary rights and with priority over the rest. We accept this assignment.
The customer can collect these claims even after assignment. Our right to collect the claims ourselves shall remain unaffected; however, we undertake not to collect the claims as long as the customer duly fulfils its payment and other obligations, is capable of providing performance, and we have not withdrawn from the contract. Where this is not the case, we may revoke this authority. We can require the customer to inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors of the assignment.
6.3. Extended retention of title with processing clause
Any processing or treatment of the goods subject to retention of title shall be deemed to have been carried out by the Client our behalf without us incurring any obligations as a result. Where the goods subject to retention of title are processed, combined, mixed or blended with other goods not belonging to us, we shall be entitled to the resulting co-ownership share in the new item in the ratio of the value of the goods subject to retention of title to the other processed goods at the time of the processing, combination, mixing or blending. Where the customer acquires sole ownership of the new item, the contracting parties agree that the customer shall grant us co-ownership of the new item in proportion to the value of the processed or combined, mixed or blended goods subject to retention of title and shall keep them in safe custody for the Seller free of charge.
6.4. Over-collateralization clause
We undertake to release a corresponding part of the security to which we are entitled at the customer's request insofar as the realizable value of all our security exceeds the claims to be secured by more than 10%. We shall be entitled to select the collateral to be released.
§ 7 Defects claims of the customer
Statutory provisions shall apply to the customer's rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, special statutory provisions shall remain unaffected in the event of final delivery of the unprocessed goods to a consumer, even where the consumer has processed them further (supplier recourse pursuant to §§ 478 of the German Civil Code). Claims arising from supplier recourse are excluded where the defective goods have been further processed by the customer or another entrepreneur, e.g. by incorporation into another product.
The basis of our liability for defects is primarily the agreement reached on the quality of the goods. All product descriptions and manufacturer's specifications which are the subject of the individual contract or which we have publicly made known (in particular in catalogues or on our Internet homepage) at the time of the contract’s conclusion shall be deemed to be an agreement on quality.
Where sales are made according to samples and/or initial sample test reports, the contracting parties agree that the samples and initial sample test reports are only descriptions of quality. We only guarantee the parameters expressly listed as target values in a test report, even during production and when the product is modified according to the agreed test intervals. Any deviations beyond this shall be insignificant within the scope of the customary technical adjustments, provided they do not affect the contractual purpose of the product. Customary and/or technically unavoidable deviations of the goods from the type sample do not constitute a defect.
Any liability on our part is excluded for damage resulting from the non-observance of installation, operating and usage information as well as warnings on the product. Furthermore, no liability is assumed for damage caused by the following reasons: Unsuitable or improper use, faulty assembly or commissioning by the contractual partner or third parties, natural wear and tear, wear and tear due to above-average load, in particular of bearings and sealing elements, faulty or negligent handling, unsuitable operating materials, replacement materials, defective construction work, unsuitable building ground, power fluctuations and lack of an emergency power supply, chemical, electrochemical or electrical influences, unless these can be attributed to a fault on our part, occurrence of interfering substances in the slurry or in the substrate (e.g. ropes, nylon straps, plait-forming substances, solid objects such as construction timber, etc.). The customer is aware that corrosion phenomena may occur on the purchased item due to contact with aggressive media (e.g. liquid manure or waste water); this does not constitute a defect of the product.
Where no agreement on quality has been made, a determination as to the presence or absence of a defect shall be undertaken in accordance with statutory provisions (§ 434(1), sentences 2 and 3 of the German Civil Code). However, we accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements) which the customer did not inform us were decisive for its purchase.
As a matter of principle, we shall not be liable for defects which were known to the customer at the time of the contract’s conclusion or of which it was not aware due to gross negligence (§ 442 of the German Civil Code). Furthermore, the customer's claims for defects presuppose its fulfilment of its statutory obligations to inspect and give notice of defects (§§ 377, 381 of the German Civil Code). Regarding building materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. We are to be immediately notified in writing if a defect is discovered during delivery, inspection or at any subsequent time. In any case, obvious defects shall be reported in writing within 2 weeks of delivery and defects not apparent during inspection shall be reported in writing within the same period from the time of discovery. Where the customer fails to carry out the proper inspection and /or notification of defects, our liability for the defect not notified or not notified in time is excluded in line with statutory provisions.
Where the delivered item is defective, we can initially choose whether we will provide subsequent performance by eliminating the defect (rectification) or by delivering a defect-free item (replacement). This does not affect our right to refuse subsequent performance subject to statutory provisions.
We are entitled to make the supplementary performance owed dependent on the customer paying the purchase price due. However, the customer shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect.
The customer agrees to give us the time and opportunity required for the supplementary performance owed, in particular to hand over the goods complained about for inspection purposes. For replacement deliveries, the customer must return the defective item to us in accordance with the statutory provisions. Subsequent performance does not include the removal of the defective item or its reinstallation if we were not originally required to install it.
Where a defect is actually present, we shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions. Otherwise, we may demand from the customer reimbursement of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the absence of defectiveness was not recognisable to the customer.
If subsequent performance has failed or if a reasonable period to be set by the customer for subsequent performance has expired with no result or is dispensable according to the statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price. There is, however, no right of withdrawal in the case of an insignificant defect.
The customer shall also be entitled to claims for damages or reimbursement of futile expenses in the event of defects only in accordance with § 8 and these are otherwise excluded.
Any modifications or repair work carried out by the contractual partner will invalidate Karl Buschmann Maschinenbau GmbH’s warranty.
Karl Buschmann Maschinenbau GmbH does not assume any guarantee for an optimum solids-free agitation of the slurry or substrate.
§ 8 Other liability
Unless otherwise stated in these GTCS including the following provisions, in line with statutory provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations.
We shall be liable for damages - irrespective of the legal grounds - within the scope of liability for wilful intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. due care in our own affairs, minor breaches of duty)
a) for claims resulting from death, physical injury or illness;
b) for claims resulting from the breach of an essential contractual obligation (an obligation whose fulfilment renders possible the contract’s proper execution in the first place and upon whose fulfilment the contractual partner routinely relies and may rely). However, in this case, our liability is limited to foreseeable and typically occurring damage.
The limitations of liability resulting from sub-clause 2 shall also apply to third parties as well as in the event of breaches of duty by persons (also in their favour) for whose fault we are responsible in line with statutory provisions. They shall not apply where a defect has been fraudulently concealed or a guarantee for the quality of the goods and for the customer’s claims under the Product Liability Act has been assumed.
The customer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect where we are responsible for the breach of duty. An unrestricted right of termination of the customer (in particular according to §§ 650, 648 of the German Civil Code) is excluded. Otherwise, the statutory requirements and legal consequences apply.
In the event of the delivery item’s manufacture or production according to the customer's drawing, specifications or technical requirements, we shall only be liable for the corresponding execution. The risk of selling such product parts produced according to drawings and binding design instructions is borne exclusively by the contractual partner.
§ 9 Prescription
Notwithstanding § 438(1)(3) of the German Civil Code, the general limitation period for claims for material defects and defects of title is one year from delivery. Where an acceptance has been agreed, the limitation period shall start to run from the acceptance.
Where the customer is an entrepreneur or merchant as defined by the German Commercial Code, the warranty for used goods is excluded.
Where the goods are a building or an item which has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (§ 438 para. 1 no. 2 BGB). Other special statutory provisions regarding prescription (in particular § 438(1)(1), and (3) and §§ 444, 445b of the German Civil Code) shall also remain unaffected.
The above limitation periods of the law on sales also apply to the customer’s contractual and non-contractual claims for damages based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 of the German Civil Code) would lead to a shorter limitation period in individual cases. Claims for damages by the customer pursuant to § 8(2) sentence 1 and sentence 2(a) as well as under the Product Liability Act shall lapse exclusively in accordance with the statutory limitation periods.
§ 10 Copyright and usage rights
Payment of our accounts receivable shall not entail the grant to the customer of either a simple or an exclusive usage right in terms of copyright law. All rights are reserved.
The same applies to sketches, drafts, final artwork, breaks, photocopies etc. These documents remain our property even after payment has been made and must be treated confidentially by the customer and may not be made accessible to third parties.
§ 11 Choice of law and place of jurisdiction
These GTCS and the contractual relationship between us and the customers shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the United Nations Convention on the International Sale of Goods (CISG).
Where the customer is a merchant within the meaning of the German Commercial Code, a public law legal entity or a public law special fund, our registered office in Hamminkeln shall be the exclusive as well as the international place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the customer is an entrepreneur within the meaning of Section 14 of the German Civil Code. However, in all cases we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTCS or, in accordance with a prior individual agreement, at the Seller’s general place of jurisdiction. Overriding legislation, in particular that concerning exclusive jurisdiction, shall remain unaffected.
German is the language of negotiations and contracts.
If the contract or these General Terms and Conditions of Sale contain loopholes, those legally effective regulations are deemed to have been agreed to fill these loopholes which the contracting parties would have agreed to in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Sale if they had been aware of the loophole.
B. General Terms and Conditions of Purchase of Karl Buschmann Maschinenbau GmbH
§ 1 Scope, Form
These General Terms and Conditions of Purchase (GTCP) apply to all business relationships with our business partners and suppliers (“Contractor”), where the Contractor is an entrepreneur (§ 14 of the German Civil Code), a legal entity under public law or a special fund under public law and - if applicable - a consumer (§ 13 of the German Civil Code).
The GTCP apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”) with us, irrespective of whether the Contractor manufactures the Goods itself or purchases them from suppliers (§§ 433, 650 of the German Civil Code). Unless otherwise agreed, the version of our GTCP valid at the time of the order or in any case the version most recently communicated to it in text form shall also apply as a framework agreement for similar future contracts, without our having to refer to them again in each individual case.
These GTCP shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of Purchase of the Contractor shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. This consent requirement shall apply in any case, for example even if we accept the Contractor's deliveries without reservation in the knowledge of its General Terms and Conditions.
Individual agreements made with the Contractor in individual cases (including side agreements, addenda and amendments) shall in any case prevail over these GTCP. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
Legally relevant declarations and notifications from the Contractor with regard to the contract (e.g. setting of a deadline, reminder, withdrawal) shall be set out in writing, i.e. in written or text form (e.g. letter, email, fax). Statutory requirements of form and further evidence, in particular in the event of doubts about the capacity of the person making the declaration, shall remain unaffected.
References to the validity of statutory provisions only have a clarificatory meaning. Even without such a clarification, statutory provisions shall therefore apply, where these are not directly amended or expressly excluded in these GTCP.
§ 2 Formation of the Contract
Our order shall be understood as an invitation to submit an offer and shall be deemed binding at the earliest upon written confirmation. The Contractor shall notify us of obvious errors (e.g. typing and calculation errors) and incompleteness of the order including the order documents for the purpose of correction or completion prior to acceptance; otherwise the contract shall be deemed not concluded. The same applies to deviating prices.
The contractor is required to confirm our order in writing within a period of 1 week or, in particular, to execute it without reservation by dispatching the goods (acceptance).
A delayed acceptance shall be deemed a new offer and requires our acceptance.
Order confirmations also require our written confirmation in order to be legally effective.
Verbal agreements also require our written confirmation in order to be legally effective.
§ 3 Delivery period and delivery delay
Our indicated delivery time in the order is binding. The Contractor shall immediately notify us in writing in the event of a likely failure on its part to meet agreed delivery times - for whatever reason.
The Contractor shall bear additional costs it incurs to meet the delivery date.
Where the Contractor fails to render its performance or does so outside the agreed delivery period or if it is in default, our rights - in particular the right of withdrawal and the right to compensation - shall be governed by statutory provisions. The provisions of clause 3 shall remain unaffected.
Where the Contractor is in default, we may - in addition to further statutory claims - claim fixed compensation for our default-related losses of 1% of the net price per completed calendar week, but not more than a total of 5% of the net price of the goods delivered late. We reserve the right to prove the incurrence of greater losses. The Contractor reserves the right to prove the absence of any losses at all or the incurrence of only considerably lower losses. We are entitled to demand the contractual penalty in addition to performance and as a minimum amount of compensation owed by the contractor in accordance with the statutory provisions without prejudice to the assertion of further damages. Should we accept the delayed performance, we will claim the contractual penalty at the latest with the final payment.
§ 4 Performance, Delivery, Transfer of risk, Default of acceptance
Without our prior written consent, the Contractor may not cause the performance it owes to be rendered by third parties (e.g. Subcontractors). The Contractor bears the procurement risk for its services, unless otherwise agreed in individual cases (e.g. limitation to stock).
Delivery shall be “free domicile” within Germany to the place specified in the order. If no destination is specified and nothing else has been agreed, delivery must be made to our registered office in Hamminkeln. The respective destination is also the place of performance for the delivery and any subsequent performance (debt to be discharged at creditor's domicile).
Where, in deviation from this, it is agreed that pricing ex works or ex sales warehouse of the Contractor is agreed, the consignments shall be transported at the lowest cost in each case, unless a specific mode of transport is expressly prescribed by the principal.
The delivery shall be accompanied by a delivery note indicating the date (issue and dispatch), the contents of the delivery (article number and quantity) and our order identification (date and number). We will not be liable for any resulting delays in processing and payment if the delivery note is missing or incomplete. A corresponding dispatch note with the same content must be sent to us separately from the delivery note.
The risk of accidental loss and accidental deterioration of the goods is transferred to us only upon delivery to the place of performance. If acceptance has been agreed, it becomes decisive for the transfer of risk. Otherwise, the statutory provisions of the law on contracts for work and services also apply accordingly in the case of acceptance. If we are in default of acceptance, this shall be equivalent to handover or acceptance.
Statutory provisions shall apply in the event of default of acceptance on our part. However, the Contractor shall also expressly offer us its performance if a specific or determinable calendar period has been agreed for an action or cooperation on our part (e.g. provision of material).
§ 5 Prices and payment terms
The price stated in the order is binding. All prices include statutory value-added tax unless this is shown separately.
Unless otherwise agreed in individual cases, the price shall include all the Contractor’s services and ancillary services (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).
The agreed price shall fall due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. The Contractor shall grant us a 3% discount on the net amount of the invoice if we make payment within 14 days. In the event of a bank transfer, payment shall be deemed timely where our transfer instruction is received by our bank before the expiry of the payment deadline; we shall not be responsible for any delays caused by the banks involved in the payment process.
We will not incur any interest after due dates. Statutory provisions shall apply in the event of delayed payment.
We are entitled to rights of set-off and retention as well as the defence of non-performance of the contract to the extent permitted by law. In particular, we are entitled to withhold the payments due as long as we are still entitled to claims against the Contractor arising from incomplete or defective performance.
The Contractor only has a right of set-off or retention in the event of legally established or undisputed counter-claims.
§ 6 Defective delivery
Unless otherwise stipulated below, statutory provisions shall apply to our rights in the event of material defects and defects of title of the goods (including incorrect and short delivery as well as improper assembly, defective assembly, operating instructions or user manual) and in the event of other breaches of duty on the Contractor’s part.
According to the statutory provisions, the contractor is liable in particular for ensuring that the goods have the agreed quality when the risk is transferred to us. In any event, those product descriptions which - in particular by designation or reference in our order - are the subject matter of the respective contract or have been included in the contract in the same way as these GTCP shall be deemed an agreement on quality. There is no difference whether the product description comes from us, the contractor or the manufacturer.
We are not obliged to inspect the goods or to make special enquiries about any defects upon conclusion of the contract. By way of a partial deviation from § 442(1), sentence 2 of the German Civil Code, we are therefore entitled to claims for defects without restriction even if the defect was unknown to us at the time of conclusion of the contract due to gross negligence.
The statutory provisions (§§ 377, 381 of the German Commercial Code) shall apply to the commercial duty to inspect and give notice of defects subject to the following conditions: Our duty to inspect is limited to defects which become apparent during our incoming goods inspection under external examination including the delivery documents (e.g. transport damage, wrong and short delivery) or which are recognisable during our quality control by random sampling.
If acceptance has been agreed, there is no obligation to inspect.
For the rest, the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case, shall be decisive.
Our obligation to give notice of subsequently discovered defects remains unaffected. Notwithstanding our duty to inspect, our complaint (notification of defects) shall in any event be deemed prompt and timely if it is sent within 8 calendar days of discovery or, in the case of obvious defects, of delivery.
Subsequent performance shall also include the removal of the defective goods and re-installation if the goods have been installed in or attached to another item in accordance with their nature and intended use; our statutory claim to reimbursement of corresponding expenses shall remain unaffected. The Contractor shall bear the expenses necessary for the purpose of inspection and subsequent performance even if it turns out that no defect actually existed. Our liability for damages in the event of an unjustified request for elimination of defects shall remain unaffected; however, we shall only be liable in this respect if we have acknowledged or failed in a grossly negligent manner to acknowledge that there was no defect.
Notwithstanding our statutory rights and the provisions in clause 5, the following shall apply: Where the Contractor does not fulfil its obligation to provide subsequent performance - either by remedying the defect (rectification of defects) or by delivering a defect-free item (replacement delivery), at our discretion - within a reasonable period of time we set, we may remedy the defect ourselves and demand from the Contractor reimbursement of the necessary expenses or a corresponding advance payment. Where the subsequent performance by the Contractor is unsuccessful or is unreasonable for us (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline need be set; we shall notify the Contractor of such circumstances without delay, if possible in advance.
Otherwise, we are entitled to reduce the purchase price or to withdraw from the contract in the event of a material defect or defect of title in accordance with the statutory provisions. We are also legally entitled to compensation for damages and expenses.
§ 7 Supplier recourse
In addition to claims for defects, we are entitled to our statutorily stipulated rights of recourse within a supply chain (supplier recourse according to §§ 445a, 445b, 478 of the German Civil Code) without restriction. In particular, we are entitled to demand the exact type of subsequent performance (rectification of defects or replacement delivery) from the Contractor that we owe our customer in the individual case. Our statutory right of choice (§ 439(1) of the German Civil Code) is not restricted thereby.
Prior to our acknowledgement or fulfilment of a claim for defects asserted by our customer (including reimbursement of expenses under §§ 445a(1), 439(2) and (3) of the German Civil Code), we shall notify the Contractor and request a written statement with a brief description of the facts. Where a substantiated statement is not transmitted within a reasonable period and no amicable solution is brought about, the claim for defects actually acknowledged by us shall be deemed to be owed to our customer. In this case, the burden of providing proof to the contrary shall rest on the Contractor.
Our claims arising from supplier recourse shall also apply if the defective goods have been further processed by us or another entrepreneur, e.g. by installation in another product.
The contractor is liable for ensuring that the delivered items or their use do not infringe upon the property rights of third parties. The contractor indemnifies us and our customers from all claims of third parties arising from the use of such property rights.
§ 8 Product liability
If the contractor is liable for any product damage, they must indemnify us from claims of third parties to the extent that the cause lies within their area of control and organisation, and they themselves are liable in the external relationship.
Within the scope of its obligation to indemnify, the Contractor shall reimburse expenses in accordance with §§ 683, 670 of the German Civil Code, which arise from or in connection with a third-party claim, including product recalls we undertake. To the extent possible and reasonable, we shall inform the Contractor of the content and scope of the recall measures and give it the opportunity to comment. Any further legal claims remain unaffected.
The Contractor shall take out and maintain product liability insurance with a lump sum coverage of at least 5 million euro per personal injury/property damage event.
§ 9 Compliance with Statutory Provisions and Safety
The contractor is responsible for compliance with the accident prevention regulations or the safety recommendations of the trade associations, the trade supervisory authority and the like.
The respective valid statutory regulations on environmental protection and the use and handling of hazardous or harmful substances must be observed with regard to the composition of materials, the components for production materials etc.
The contractor must also independently ensure compliance with the statutory provisions in other respects. The Contractor shall notify us where any of our placed orders are not statutorily-compliant. If no such notification is made, the contractor will be liable for any damages arising from this themselves and under our indemnity.
§ 10 Prescription
The mutual claims of the contracting parties are subject to the statute of limitations in accordance with the statutory provisions, unless otherwise stipulated below.
Notwithstanding § 438(1)(3) of the German Civil Code, the general limitation period for claims for defects is three (3) years from the transfer of risk. Where an acceptance has been agreed, the limitation period shall commence to run upon the acceptance. The 3-year limitation period also applies accordingly to claims arising from title defects, whereby the statutory limitation period for in rem restitution claims of third parties (§ 438(1)(1) of the German Civil Code) remains unaffected. Furthermore, claims arising from title defects shall not lapse under any circumstances as long as the third party can still assert the right - in particular in the absence of a limitation period - against us.
The limitation periods of the law governing the sale of goods including the above extension apply - to the statutory extent - to all contractual claims for defects. Where we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (§§ 195, 199 of the German Civil Code) shall apply here, unless the application of the limitation periods of the law governing the sale of goods leads to a longer prescription period in individual cases.
§ 11 Confidentiality, Retention of title
We reserve ownership rights and copyrights to illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents. Such documents shall be used exclusively for the contractual performance and shall be returned to us after the contract has ended. The documents shall be kept confidential with respect to third parties, even after the contract ends. The confidentiality agreement only expires when and insofar as the knowledge contained in the documents provided has become general knowledge.
The above provision applies accordingly to materials and stock (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items which we provide to the Contractor for production. As long as they are not processed, such items must be stored separately at the contractor’s expense and insured to a reasonable extent against destruction and loss.
Any processing, commingling or combination (further processing) of provided items by the Contractor shall be carried out for us. The same applies if we further process the delivered goods, such that we are deemed the manufacturer and acquire ownership of the product at the latest with the further processing in accordance with statutory provisions.
The ownership of the goods shall be transferred to us unconditionally and without regard to the payment of the price. However, if we accept in individual cases an offer of transfer of title from the Contractor conditional upon payment of the purchase price, the Contractor's retention of title shall expire at the latest upon payment of the purchase price for the delivered goods. We remain authorised to resell the goods in the ordinary course of business even before payment of the purchase price, with advance assignment of the resulting claim (in the alternative, the simple retention of title extended to resale shall apply). This excludes in any event all other forms of retention of title, in particular the expanded, transferred and extended retention of title to further processing.
Materials, tools, devices and models provided by us to the contractor or procured from third parties must be checked by the contractor for their suitability and absence of defects. Unless a corresponding complaint is made immediately, it is deemed suitable and free of defects.
Material provided by us or manufactured for contractual purposes and charged to us separately by the contractor shall remain or shall become our property. They must be identified by the Contractor as our property, carefully stored, secured against damage of any kind and only used for the purposes of the contract. The risk of the materials’ loss or deterioration shall be borne by the Contractor.
The Contractor is responsible for the processing, mixing or combining (further processing) of provided items on our behalf. The same applies if we further process the delivered goods, such that we are considered the manufacturer and acquire ownership of the product at the latest with the further processing in accordance with statutory provisions.
11.8 Retentions of title by the Contractor shall only apply to the extent that they relate to our payment obligation for the respective products to which the Contractor retains title. In particular, any extended or expanded retention of title is not permitted.
§12 Insurance Costs
Insurance costs of any kind are not borne by us. These must be assumed by the contractor.
§13 Force Majeure
If we are unable to meet our acceptance obligations due to operational disruptions or force majeure, we have the right to postpone acceptance and, if necessary, to withdraw from the contract after giving notice.
§14 Assignment of Claims
The assignment of existing claims against us is excluded. This does not apply to monetary claims.
§ 15 Choice of law, place of performance and jurisdiction
These GTCP and the contractual relationship between us and the Contractor shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the United Nations Convention on the International Sale of Goods (CISG).
The negotiation and contract language is German.
The place of performance for all obligations of both contracting parties is our head office in Hamminkeln.
If the Seller is a merchant within the meaning of the German Commercial Code, a public law legal entity or a public law special fund, our registered office in Hamminkeln shall be the exclusive as well as the international place of jurisdiction for all disputes arising from the contractual relationship. The same applies if the Contractor is an entrepreneur within the meaning of § 14 of the German Civil Code.
However, in all cases we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTCP or, in accordance with a prior individual agreement, at the Contractor’s general place of jurisdiction. Overriding legislation, in particular that concerning exclusive jurisdiction, shall remain unaffected.
Where the agreement of the aforementioned place of jurisdiction with a foreign contractual partner is not permissible due to the law of the relevant country of the contractual partner, Zurich (Switzerland) is agreed as the place of jurisdiction.
Where one of these provisions – for whatever reason – is or proves wholly or partly invalid, unenforceable or incomplete, the legally effective provision which the contracting parties would have agreed to in accordance with the economic objectives of the contract and the purpose of these terms and conditions had they been aware of the invalidity, unenforceability or loophole is deemed agreed in place of the invalid provision or to fill the loophole.
Version as of 08/12/2021