Terms and conditions of sale and delivery
of de Wit Deutschland GmbH
§ 1 General information
(1.1) The following general terms and conditions of business apply in the current version for all contracts agreed between de Wit Deutschland GmbH (hereinafter referred to as the “Seller”) and the appropriate (possibly future) contractual partner (hereinafter referred to as the “Customer”) as well as any contracts to be completed with regard to the sale and/or delivery of goods insofar as they are applicable to companies, corporate bodies under public law and special funds under public law in the sense of § 310 I of the German Civil Code.
(1.2) We expressly indicate that general terms and conditions of business or other agreements shall only be a part of the contract when they are recognised in writing by the Seller. In particular, no inclusion through coherent behaviour shall be caused by the Customer clearly referring to their general terms and conditions of business and the Seller refuting their validity.
(1.3) If the general terms and conditions of business of the Customer are also a part of the contract and the general terms and conditions of business contradict each other, then the general terms and conditions of business of both parties shall only be a part of the contract to the extent that they agree (principle of congruent validity). Disagreements resulting from contradictory general terms and conditions of business shall ideally be tackled taking the interests of parties on both sides into account, thus leading to a solution appropriate to the interests of both parties. If this is not possible, then the statutory regulations shall apply as a substitute. Disagreements shall not affect the validity of the contract nor the rest of the general terms and conditions of business.
(1.4) Contracts of changes to the contracts shall only take effect if they are agreed in writing. As such, compliance with the written form is not only used for the purposes of proof, but is much more a legally founded precondition of the declaration of intent (constitutive written form). This shall also apply to a change to this written form clause. However, formless contracts and contractual changes shall also be effective if they are completed with an individual agreement in the sense of § 305 b of the German Civil Code. We expressly state that the requirement for the written form shall also be given by telecommunicative transmission (e-mail, fax) (cf. § 127 II, P.1 of the German Civil Code).
(1.5) These general terms and conditions of business can be changed at any time as required by changes to the law, judicial changes or significant changes to the economic situation. The changes shall take effect, insofar as the Seller has informed the Customer of the new version of the general terms and conditions of business in text form and with clear emphasis of the changes, the Seller has indicated, on providing information on the new version, that the changes shall also take effect without the approval of the Customer if the Customer does not contradict the changes in good time and contradiction by the Customer is not given within 2 (two) weeks from the arrival of the information.
(1.6) The Seller shall reserve the right to make technical changes to the construction, form and material, even during the delivery period, providing that the changes are viable for the Customer and nothing contradictory has been agreed.
§ 2 Offers
(2.1) Offers by the Seller shall always be non-binding and shall represent merely a request to submit a binding offer on behalf of the interested party.
(2.2) Offers by the Seller shall, if they do not contain any deviating details – subject to sufficient security of the order amount (e.g. through credit insurance or bank guarantee) – be valid for four weeks after the day the offer is made.
(2.3) Documents belonging to the offer, such as images, brochures, drawings, measures, load values and weight data shall be subject to deviations normal in the sector and/or in the scope of standard production tolerance.
(2.4) Samples shall be non-binding approval samples. Purchases by the same shall be subject to deviations normal in the sector and/or in the scope of standard production tolerance.
§ 3 Patents
(3.1) The Seller shall retain the copyright for drawings and other construction documents and data. They shall not be made available to third parties, should nothing else have been agreed, for example if the data/drawing/images are also to be used for a webshop. Any corresponding approval by the Seller with regard to the use or forwarding of the above-mentioned documents shall be made in writing.
(3.2) The Customer shall assure the Seller that the manufacture and delivery of the goods produced to their instruction do not infringe the protection rights of third parties. In the case of protection right claims being made by third parties to the Seller, the Seller shall be authorised without the need for legal testing to withdraw from the corresponding contracts, after consultation with the Customer, assuming that the third party has made the protection rights infringement claim in writing to the Seller within eight days.
(3.3) The Customer shall release the Seller from claims pertaining to infringement of the protection rights of third parties, should they be responsible for them. In the case of claims regarding protection rights by third parties, previously provided services and costs of the Seller shall be reimbursed or replaced, irrespective of when they are due.
§ 4 Prices and payment options, disclosure obligations
(4.1) The prices listed in the offers and documents of the Seller should be regarded as prices for ex works deliveries or from the warehouse of the Seller. The prices do not include the appropriately valid value added tax, the costs for packaging, loading and unloading, haulage, customs, insurance, dismantling, return and proper disposal of old electrical and electronic devices for commercial purposes in the sense of the ordinance on old electrical devices, provided that nothing else was agreed. Fees, taxes or other expenditure connected with the delivery shall be paid by the Customer.
(4.2) The individual prices listed by the Seller in an offer shall only be valid in the case of an order for the entire delivery volume listed in the appropriate offer or the concrete service offer. In the case of an order deviating in terms or quantity or scope from the offer by the Seller, then this means that the prices given in the offer do not apply to the Seller.
(4.3) Payments for invoices as well as credit notes received within 10 (ten) days of acceptance of the invoice shall, with the exception of change services, be made net with a 2 (two) per cent discount. Later payments made within 30 (thirty) days of the invoice date shall be paid net without a discount.
(4.4) All invoices and credit notes shall – subject to deviating written agreements in individual cases – be due without a discount within 30 (thirty) days of invoicing. After this, the invoice shall be considered as late. Payments shall be made, stating the invoice number, solely to the accounts listed in the invoice of the Seller in the agreed currency. With any kind of payment, fulfilment shall only be given on the day upon which the Seller has full, unrestricted possession of the payment. The Seller shall not be obliged to accept foreign currency or cheques.
(4.5) The Customer shall guarantee the correctness of their VAT ID number, which shall be indicated immediately and without a special request. The Customer shall be obliged to inform both the Seller and the responsible national financial authority immediately should there be a change to their company name, their address, their delivery address and their VAT ID number.
(4.6) The Seller shall be authorised to adapt their prices as necessary to the level normally available on the market, if, between contract completion and order fulfilment, wage, material price or taxation increases occur. In the context of massive, overproportionate and unforeseeable material price increases (>25%), the Seller shall be permitted to foreclose on any price maintenance agreements within a period of 30 days, through proof of the above-named material price changes.
(4.7) In the case of late payment by the Customer, the Seller shall be authorised to invoice late payment interest to the level of 9 (nine) percentage points p.a. above the appropriate basic interest rate according to § 247 of the German Civil Code. The
right to claim any further damage for late payment is reserved.
(4.8) The Customer shall only be permitted to add undisputed, legally binding claims which are ripe for adjudication, as well as claims from the same contractual relationship. Claims for the right of retention shall only be permitted if the basic counterclaims are determined to be undisputed, legally binding or ripe for adjudication.
(4.9) If circumstances occur which suggest that the Customer shall not be able to meet their obligations over time (e.g. due to an ongoing economic crisis) and the Seller cannot be expected to maintain the contract or if the legal circumstances applicable at the time of contractual completion change significantly/the control over the Customer or a significant proportion of their shares is transferred to other natural or corporate bodies and this change can no longer be sensibly applied to the Seller, then the Seller shall be authorised to demand security for existing delivery for a period of at least one week through advance payment or a bank guarantee (at the discretion of the Customer) and to refuse performance until the security is provided. After an appropriate period has elapsed unsuccessfully, the Seller shall be authorised to withdraw from the contract and to demand damages. In addition, in this case, the Seller shall be permitted to revoke the authorisation for further selling, along with the bank transfer permission according to § 8.8 and the right for processing, joining and mixing of previously delivered goods according to §§ 8.4-8.5 and to demand the delivered good according to §§ 8.8-8.9.
(4.10) Should the legal circumstances applicable at the time of contract completion change significantly or should the control over the Customer or a considerable amount of their shares be transferred to other natural or corporate bodies, then the Customer shall be obliged to signal this immediately to the Seller.
(4.11) To be able to execute a tax-free delivery and not be forced to issue all the invoices with VAT and then refund the VAT after the papers have been submitted, the Customer shall provide the proofs of delivery. To do this, they shall prove delivery of the good by sending the appropriate original document within 4 (four) weeks of collection/shipment of the good to the Seller. Should the document not reach the Seller within this period, they shall be authorised to invoice the customer to the level of the VAT of the net value of the good applicable at this time.
(4.12) Invoice reductions, differences, debit notes or other disagreements shall not change the original payment destination of the invoice. All undisputed claims unaffected by disagreements shall be due according to the original invoicing. Credits provided by the Seller for offsetting the difference shall have no effect on the original payment destination of the invoice.
§ 5 Delivery
(5.1) The packaging, shipment route and means of transport shall always be aligned to stepped flat rate prices. The regulations in §4.1 shall also apply. The Seller shall calculate the costs for the packaging, shipment route and means of transport, providing that this was agreed.
(5.2) A post-paid delivery, i.e. a freight and packaging cost-free delivery within Germany, shall be delivered free from a net order value of 500.00 euros. It is clear that a “free delivery” means that the haulage company shall open their vehicle at the agreed delivery point and make it available for unloading. Unloading and local transport of the good shall be carried out by the Customer.
(5.3) With carriage-free provision, the Seller shall take back undamaged multi-use load carriers. The pool pallets used for transport shall be exchanged directly with the haulage company or returned. Individual details regarding processing shall be found in the appropriately valid loading aid processing of the Seller.
(5.4) The smallest sales units defined in the appropriate master article data shall be binding. Goods ordered below the smallest sales unit shall be automatically rounded up to the next highest smallest sales’ unit, i.e. without discussion with the Purchaser.
(5.5) The Seller shall reserve the right to make over and underdeliveries, in particular with order-related production, in the normal market scope or the national or international standard. If there is a demand for exact quantity compliance, an express indication shall be required, which must be confirmed.
(5.6) The Seller shall be authorised to make partial deliveries but shall not be obliged to do so, if such deliverables are reasonable for the Customer. Partial deliveries can be invoiced separately.
(5.7) The Customer shall not be permitted to refuse additional or reduced services to a reasonable level. A complaint regarding additional or reduced services shall not be an authorisation to refuse further deliveries from the same or any other contract. In the case of special productions, the Seller shall reserve the right to make an additional or reduced delivery of 10% of the ordered quantity. Whatever the case, the actually delivered quantity shall be invoiced.
(5.8) Framework orders, call orders and goods specially held for the customer (made-to-order goods) shall oblige the Customer to accept the total quantity upon which the framework and call orders are based or the retained quantities provided in the context of an existing business relationship. Should the business relationship fail, then the Seller shall thus have the right to deliver any retained quantities to the Purchaser after informing them of the same. Insofar as the contract or any other agreement does not produce any specific call orders or other agreements are made, then the entire quantity of the retained quantity of the general/call order shall be collected within 3 (three) months. If the Customer does not comply with collection dates, then the Seller shall be authorised to deliver and invoice the total quantity to their address 4 (four) weeks after written announcement, with an indication of the consequences of ignoring the call order. The rights of the Seller shall be unaffected by a delay by the Customer. Articles designated as made-to-order goods include all goods which were individualised for the customer (e.g. through the design of their own sales labels, own article numbers, special packaging or other individualisation measures). In the case of non-acceptance and thus the return of made-to-order goods to the goods stock of the Seller, the Customer shall bear all the associated invoicable measures. In this case, the normal re-warehousing costs shall be replaced with the costs for the actual effort incurred.
(5.9) The delivery obligation of the Seller shall be subject to the condition of fault-free, timely self-delivery, assuming that the Seller obtains the good, either in whole or in part, from a subcontractor. This shall not apply if non-delivery or delay is the fault of the Seller.
(5.10) Events, such as those below, which are not the responsibility of the Seller in the context of normal corporate risk and which make (partial) delivery considerably more difficult or even impossible, shall authorise the Seller to delay the (partial) delivery by the length of the obstacle including a reasonable start-up time or to withdraw from the contract at their discretion. In any case, the Customer shall be permitted to demand an explanation from the Seller as to whether they will deliver (partially) or withdraw within a period reasonable for the circumstances. The delivery period shall be extended due to measures in the scope of workplace disputes, strikes and picketing, requirements by the authorities, difficulties in material procurement, rejects or reworking, operational faults and lack of personnel, lack of transport means and in the case of the occurrence of any other unforeseen events about which the Seller has no influences, according to the length of these events.
(5.11) The Customer shall also enter a period of acceptance delay even during the readiness for shipment, if, in the case of delivery ex works/warehouse or agreed obligation to collect, the delivery is only offered to them in writing by the Seller or they inform the Customer that they shall not ultimately accept the delivery.
(5.12) Goods signalled as ready for shipment in agreement with the contract shall be accepted immediately by the Customer. Otherwise, the Customer shall enter a period of acceptance delay, meaning that the Seller, without any damage to their other rights, shall, at the discretion of the Seller, be permitted to send or store the good at the cost and liability of the Customer and, after a week has elapsed, be able to invoice it. The same shall apply if the good is not collected or not fully collected within a reasonable call period (cf. § 5.8).
(5.13) For the case that the customer delays acceptance or infringes any other obligations to perform or collaborate, the Seller shall be authorised to demand the damage incurred by them including any additional costs.
(5.14) Should the Customer be more than one month in arrears with the fulfilment of the obligations arising from the above regulations, then the Seller – irrespective of other rights – shall be permitted to demand a contractual penalty of 5 (five) per cent of the invoiced value from the Customer instead of contractual completion and shall sell or destroy any stored goods, taking the interests of the Customer into account. The contractual penalty shall be added to any damages or replacement costs to be paid by the Customer. The Customer shall then pay any discounts granted for earlier deliveries on the basis of this contract.
§ 6 Delivery periods and deadlines
(6.1) Delivery periods and deadlines shall only be considered as approximate unless anything to the contrary has been expressly agreed. All the delivery deadlines named by the Seller on order confirmations shall be considered as dispatch deadlines, not dates of arrival at the Customer’s premises.
(6.2) Compliance with delivery periods and deadlines shall require timely completion of the Customer’s contractual obligations. Delivery periods shall commence with the date of the order confirmation of the Seller, however not before all the individual details on the execution of the order have been clarified and all
the documents required for the execution of the order have been received, along with any other data required from the Customer and the arrival of any agreed down payment. Should these preconditions not be fulfilled in good time, then the delivery periods and deadlines shall be extended appropriately. This shall not apply if the delay is the responsibility of the Seller. The delivery period shall be considered as having been complied with when the good leaves the factory or warehouse at the agreed time or readiness for shipment is signalled to the Customer but the good cannot be shipped in good time for reasons for which the Seller is not culpable. The above regulations shall apply according to delivery deadlines.
(6.3) In the case of subsequent changes to the order at the request of the Customer, the Seller shall be permitted to demand an appropriate extension of the delivery periods and deadlines. If the delivery is delayed at the request or the fault of the Customer, then the good shall be stored at the cost and liability of the Customer, provided that nothing else has been agreed.
(6.4) The Customer shall obtain approvals from authorities or any third parties required for the creation of systems or deliveries, e.g. for the purpose of import. Should such approvals not be available in good time (i.e. by the commencement of fulfilment actions by the Seller), then the delivery period shall be extended accordingly.
(6.5) The Seller shall be authorised to carry out partial deliveries as well as deliveries before the due date and to invoice them separately. If an on-call delivery has been agreed, then the good shall be considered as having been collected at the latest three months after ordering, should nothing else have been agreed. The Customer shall have a duty to collect which, if infringed, shall give the Seller the right to store the good with a third party to be invoiced to and in the name of the Purchaser or to have it delivered to the address of the Customer.
(6.6) With articles produced by the Seller on an order-related basis, the Customer shall be obliged to accept them. It shall be expressly agreed that, in the case of a withdrawal from the contract by the Customer, the Customer shall carry the costs incurred up to the time of the withdrawal.
(6.7) Unexpected events outside the control of the Seller, such as war, the risk of war, the application of violence by third parties against people or property, government actions including currency and trade measures, work disputes with the Seller or their suppliers or transport companies, interruptions to the intended transport connections, fire, a lack of raw materials, a lack of energy and other operational faults at the Seller or their supplier, shall extend agreed delivery periods and deadlines for the length of the hindrance. This shall also apply if the Seller is already late with a delivery or if the delivery obstacles listed above existed before contract completion, but the Seller was not aware of them. The Seller shall inform the Customer immediately of obstacles of the type above.
(6.8) Should such delivery delays last for longer than two months, then both sides shall, after a reasonable period of grace, withdraw from the contract. However, the Customer shall only be permitted to withdraw when the Seller does not clarify on request within a week whether they wish to withdraw or deliver within a reasonable period. The same right of withdrawal shall be created, irrespective of the above period, if the execution of the contract has become impossible for one of the parties due to the delay which has occurred.
§ 7 Returns of goods
(7.1) A claim by the Customer for the return of unrequired goods shall – apart from warranty cases or other obligations to take back required by law – only take place after prior written approval from the Seller. Any contradictory or individual return agreements shall be made in writing and shall also require the invoice and/or delivery note number of the Seller. Return enquiries whose net goods value, before VAT, is less than 15.00 euros per item cannot be accepted and processed. Credits or allowances resulting from returns shall make up a maximum of up to 70 (seventy) per cent of the net value of the good.
(7.2) In addition, the preconditions and conditions below according to §§ 7.3-7.6 must be complied with and no case of § 7.7 may occur.
(7.3) A return shall be permitted for up to 12 (twelve) months after the delivery data and only specifying a delivery note or invoice number of the Seller.
(7.4) Current catalogue goods shall be returned in a perfect, resellable state. Any good shall be returned in unused, undamaged, originally packed and complete packaging units, whereby a full packaging carton or the equivalent of a full packaging carton represents the smallest possible return unit. In addition, the minimum value of warehouse acceptance per items shall be 50.00 euros. In the case of a return of made-to-order goods to the goods stock of the Seller, the Customer shall bear all the associated invoicable measures. In this case, the normal re-warehousing costs shall be replaced with the costs for the actual effort incurred.
(7.5) The return shall be registered and be confirmed in writing by the Seller with a returns number. If necessary, there shall be a survey of the good on-site by the Seller, which the Customer shall tolerate. The return confirmation of the Seller shall be included with the shipment. The return shall be free of charge. A reimbursement shall take place in the form of a credit note. Only approved and flawless articles shall be credited. Debit notes from the Customer shall not be approved.
(7.6) For the handling and checking in the context of the ISO 9001 quality management system, the Seller shall charge a processing rate of 30 (thirty) per cent of the affected good value, provided that it is not a made-to-order good. In this case, the Seller shall accept the required costs for the repackaging and cleaning of the good. In the case of made-to-order goods, the Seller shall retain the right to pass the actual costs incurred through re-storage on to the Customer.
(7.7) Special productions, unlisted/inactive articles and phase-out types, incomplete packaging units and old versions shall not be accepted.
(7.8) If one of the points named under § 7.7 is relevant, then the returned good shall be destroyed after discussion with the Customer and the expiry of a reasonable period set by the Customer.
§ 8 Right of property retention and ownership conditions
(8.1) The Seller shall reserve the ownership to the supplied objects until the receipt of all payments from the business relationship with the Customer. The right of property retention shall also extend to the recognised balance, should the Seller book claims against the Customer in continuous invoicing (current account retention).
(8.2) The moulds, tools, construction documents and other comparable items supplied by the Seller for the execution of the order shall also remain the property of the Seller. In particular, no property rights shall be solely derived from the Customer contribution to the costs of the manufacture of the moulds, tools, construction documents and other comparable items.
(8.3) The Customer shall be obliged, for as long as the property has not yet been transferred to them, to handle the purchased item and clearly and permanently label it as the property of the Seller. In particular, with particularly high-value goods, they shall be obliged to insure it for the new value against theft, fire and water damage. In cases of doubt, the Customer should consult the Seller. If maintenance and inspection work must be carried out, then the Customer shall carry them out in good time and at their own cost.
(8.4) For the Seller, as the manufacturer, the processing or reformation of the delivery objects by the Customer shall always take place in the sense of § 950 of the German Civil Code (manufacturer clause), but without any obligation to them. If the delivery objects are processed with other objects, which do not belong to the Seller, then the Seller shall procure the joint property of the new item in the ratio of the delivery item to the other joined or mixed objects at the time of processing. Otherwise, for the item created through processing, the same handling shall apply as with goods under retention.
(8.5) If the delivery objects are permanently connected or mixed with other objects, which do not belong to the Seller, then the Seller shall procure the joint property of the new item in the ratio of the delivery item to the other joined or mixed objects at the time of connection or mixing. Should the connection or mixing occur in a manner that the item of the Customer can be seen as the main item, then the Customer shall transfer proportional joint property rights to the Seller. The offer pertaining to this shall be hereby accepted.
(8.6) The Customer shall be obliged to take custody of the (joint) property of the Seller with normal commercial care. It shall be treated as a good subject to title retention. In so doing, the customer shall be liable beyond the care they should apply in their own matters.
(8.7) Before the transfer of property, the good of the Seller shall neither be pledged nor given as security without prior written approval. The Seller shall be informed of the registration or claiming of rights by third parties to the good immediately. In addition, in this case, all the necessary details shall be given for any intervention by the Seller along with necessary certificates and other documents. If the Customer does not fulfil the requirements, then the damage caused shall be charged to the Customer. In this case, all the claims against the Customer shall be due immediately.
(8.8) Provided that the Customer behaves in accordance with the contract, for example with regard to their contractual obligations to pay, then the Customer shall be authorised to sell on or use the delivery objects in the context of normal business transactions and to collect the appropriate receivables after surrender. Otherwise, the allowance can be revoked. If the goods are sold before the receivables of the Seller are paid, then the Customer shall be obliged to maintain and secure the property rights of the Seller until the receivables have been fully paid. To do this, they shall release any receivables to the Seller straight away (receivable created through further selling and any additional and security rights of the Customer from further selling, as well as any damage claims due to damage and destruction of the retained good, whereby an insurance figure shall replace the retained property) to the level of the invoiced end amount (including VAT), which the Customer has obtained through further selling from their buyer or other third parties, independently of whether the delivery objects have been sold on further without or after the agreement. The surrender shall be hereby accepted. If joint property of the Customer is sold, then the surrender of the receivables shall extend to the amount corresponding to the proportional amount of the Seller. The Customer shall be permitted to collect receivables even after surrendering them. The authorisation of the Seller to collect the receivable themselves shall not be affected by this. However, the Seller shall be obliged not to collect the receivable if the Customer has properly met their payment obligations and is not late with payment. In any case, the Seller shall be permitted to demand that the Customer state the surrendered receivables and their debtors as well as provide all the data required for collection and hands over the corresponding documents and informs the debtors (the third parties) of the surrender. In this case, the Seller – irrespective of other rights – shall particularly be authorised to take back the delivery objects (or their surrogate) temporarily and at the cost of the Customer and, after a reminder, to use the delivery objects (or their surrogate) according to the necessary discretion and at the cost of the customer, whereby the Customer shall then be given a corresponding credit (minus the costs of use).
(8.9) The Customer shall not be given any further authorisations regarding the retained good, particularly with regard to pledging or transferring security. In addition, the authorisation of the Customer may also be revoked by the Seller if the obligations arising from §§ 3, 8 are infringed or if the invoice is not paid. In these cases, the Customer shall also be prohibited from processing the retained good and its connection or mixture with other goods. The Seller shall also be authorised to withdraw the delivery objects. The Customer shall be obliged to hand them over. The retraction of the delivery objects by the Seller shall represent a withdrawal from the contract. A withdrawal from the contract shall also occur if the delivery objects are pledged. In the case of pledges or other interventions by third parties, the Customer shall inform the Seller immediately and in writing.
(8.10) In addition to this, the Seller can, if the Customer is longer than three weeks in arrears with their payment obligations to the Seller, demand the retained good at the expense of the Customer and collect the receivables surrendered to the Seller along with other claims. In addition, the Seller shall – assuming that there is still a security interest on the part of the Seller – be able to use the retained good to satisfy their claims at reasonable discretion at the cost of the Customer. The revenue thus achieved shall be invoiced to the Customer minus the use costs with the open receivables of the Seller – starting with the oldest due receivables.
(8.11) The Seller shall be obliged to release the securities available to them to the Customer on demand, providing that their value does not exceed the receivables to be secured, assuming that they have not yet been remunerated, by more than 10 (ten) per cent.
(8.12) At the latest with payment of all receivables of the Seller by the Customer, all the surrendered receivables including the secondary and security rights will be transferred back to the Customer.
§ 9 Guarantee and guarantee exclusion
(9.1) The Customer shall immediately investigate with reasonable care and – if necessary, with sample processing – the structure of the delivered good and shall complain immediately and in writing about detectable faults (as far as possible and reasonable, submitting samples) and shall provide the invoice, manufacture and shipment number. Hidden faults shall be reprimanded in the same way. Otherwise, the good shall be considered as approved without conditions. Any obligations of the Customer according to § 377 of the German Commercial Code shall remain unaffected.
(9.2) The Customer shall indicate clear faults resulting from the transport of the good by the haulage company in such a way in the freight note of the haulage company as to allow later regress of the Seller against the haulage company.
(9.3) Minor deviations in the dimensions and designs, which are in the scope of the technically specified tolerances, do not give an opportunity to make complaints.
(9.4) The guarantee shall exclude such faults which are not created by an arrangement and mounting caused by the Seller, insufficient installation, non-observation of the installation requirements and conditions of use, overloading of the parts beyond the performance stated by the Seller, negligent or incorrect handling and use of insufficient operating materials. This shall also apply to faults which can be traced back to material provided by the Customer. The Seller shall also be equally free of liability for damage which can be traced back to the actions of third parties, to atmospheric discharges, surge voltages and improper chemical influences. The guarantee shall not relate to the replacement of parts subject to natural wear. This shall not apply if the fault cannot be traced back to one of the named circumstances.
(9.5) The Seller shall also be authorised to refuse supplementary performance for as long as the Customer does not permit the Seller to carry out a proper test of the eliminated faults.
(9.6) In the case of authorised and timely complaints about faults, the Seller shall, at the request and discretion of the Customer, eliminate the fault in the context of supplementary performance by eliminating the fault or delivering a fault-free item.
(9.7) According to §445 a of the German Civil Code, the limitation period for fault claims and claims for damages shall be – irrespective of §§ 307 No. 7 a) and b) of the German Civil Code, liability for intent, fraudulent suppression of a fault and the existence of a structural guarantee (§ 444 of the German Civil Code) – one year from handover; in the cases of § 438 I, No. 2 b) of the German Civil Code (if necessary, in conjunction with § 651, S.1 of the German Civil Code) and/or § 634a I, No. 2 of the German Civil Code 5 years from handover or acceptance (in the case of structures and an item, which is used for a structure through its usual purpose and which has caused the fault liability).
(9.8) Rights of recourse on the part of the Customer according to § 445a BGB shall be excluded.
(9.9) Damages claims shall also be limited by the scope of § 10.
§ 10 Liability exclusion and limitation, exclusion of a contractual penalty
(10.1) An explicit exception shall be made for the liability exclusions and limitations below, the injury to life and health which is the result of an intentional (§ 276 III of the German Civil Code) or negligent (§ 276 II of the German Civil Code) infringement of obligations by a legal representative or assistants (§ 278 of the German Civil Code) of the Seller and other damage caused by a grossly negligent infringement of obligations by the Seller or an intentional or grossly negligent infringement of obligations by a legal representative or assistants of the Seller in the sense of §§ 309 Nos. 7 a) and b) of the German Civil Code. In addition, the liability exclusions and limitations below shall not apply to the acceptance of a guarantee for the structure or lifespan of the item in the sense of § 444 of the German Civil Code and in the case of fraudulent suppression of a fault, in the case of forced liability according to the product liability act andin the infringement of an obligation, whose fulfilment enables the correct execution of the contract and compliance with which the contractual partner has expected and expects (key obligation/cardinal obligation). Thus, only the liability restrictions according to § 10.3 and 10.4 shall apply.
(10.2) If non-essential contractual obligations are infringed, the Seller, their leading employees and simple assistants shall only be liable in cases of intent and gross negligence.
(10.3) In the case of damage caused by negligence, the Seller, their legal representatives and assistants shall only be liable in cases of the infringement of an obligation, the fulfilment of which permits the correct execution of the contract and compliance with which the contractual partner has expected and expects (key contractual obligation/cardinal obligation), although the level shall be limited to the damage which was foreseeable at the time of contract completion and which is typical for the contract.
(10.4) For delay damage, the Seller shall, in the case of light negligence, only be liable to the level of up to 5% of the agreed purchase price.
(10.5) A claim by the Customer a third party for payment of a contractual payment shall be excluded.
(10.6) If a good is produced by the Seller on the basis of construction data, drawings, models or other specifications of the Customer, then the Seller’s liability shall only extend to the creation according to the conditions. There shall be no warning obligation affecting the Seller if the construction data, drawings, models or other specifications supplied by the Customer are unsuitable.
(10.7) If any conditions for mounting, commissioning and use or statutory approval conditions are not complied with, then any damages shall be excluded.
(10.8) Should the Seller make samples available to the Customer or receive them from them, provide analyses, name DIN regulations or other national or foreign quality standards or make other specifications regarding the characteristics of the good, then they shall only serve to describe the services to be provided the Seller in more detail. There shall be no guarantee of characteristics. In particular, the Seller shall not be obliged to test whether the good can be used or is suitable for the specific purpose intended by the Customer.
§ 11 Unauthorised withdrawal
Should the Customer withdraw from the contract in an unauthorised manner or refuse to accept the delivery or service in an unauthorised manner, then the Seller shall be authorised, without special proof, to demand 30 (thirty) per cent of the agreed price as flat rate damages, providing that this rate does not exceed the typical damages to be expected. The Customer shall be required to prove that less or no damage than the flat rate damage has been caused to the Seller.
§ 12 Transfer prohibition
The Customer shall only be permitted to transfer claims made against the Seller resulting from this contract to third parties with their prior written approval.
§ 13 Place of jurisdiction and fulfilment
(13.1) The place of jurisdiction for any disagreements shall be the head office of the Seller. The Seller shall also be permitted to proceed against the Customer in their place of business.
(13.2) The place of fulfilment for the delivery, all services and payments of the Seller shall be the head office of the Seller.
§ 14 Other conditions and authorised version
(14.1) The Seller shall be authorised to process and save data relating the business relationship or connected to it about the Customer, irrespective of whether it is from the Customer or from third parties, in accordance with the German Data Protection Act.
(14.2) Only the law of the Federal Republic of Germany shall apply. The application of the conflict of laws and the UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
(14.3) Should the Seller and Customer agree on the application of one of the international trade clauses (“Incoterms”) for the contract, then the current version shall apply.
(14.4) If there are differences between the English and German versions, then the German version of the general purchasing conditions shall apply.