§ 1 Scope of application
1. All quotes are made subject to the following conditions. These form the basis of all quotes and agreements and are deemed to be recognised for the duration of the entire business relationship by virtue of having placed an order or accepted the delivery or service. We will not be bound by terms and conditions at variance to these that have not been expressly agreed in writing, even if they have not been expressly contradicted.
2. The following provisions apply exclusively to business transactions between the user and enterprises within the meaning of Section 14 of the German Civil Code (BGB); statutory provisions apply to consumers in accordance with Section 13 German Civil Code (BGB).
§ 2 Quotes and payment terms, assignment/offsetting restrictions, prices
1. We shall be bound by a quote for the delivery of goods, the production of a work or the provision of a service for 14 days after its submission, unless a different period of time has been agreed in writing.
2. Each quote is subject to timely delivery to us, unless we are responsible for the non-delivery, in particular if we have entered into a congruent hedging transaction with our supplier in good time.
3. Unless otherwise stated in the order confirmation, the prices of FCA Rodenberg (INCOTERMS 2020) shall apply. The place of performance for contractual claims is Rodenberg, unless otherwise agreed in writing. The place of subsequent performance shall be determined for purchase contracts in accordance with § 6 II. 6, for contracts for work and labour according to § 7 IV. 5.
4. Statutory value added tax is not included in prices; it will be shown separately on the invoice at the statutory rate on the day of invoicing.
5. The purchase price or the invoice amount and prices for ancillary services are due for payment upon delivery of the item purchased or acceptance of the work and an invoice being delivered or sent. Deliveries are always made against advance payment, unless expressly agreed otherwise in individual contracts.
6. Should the customer be in default of payment or if their net assets deteriorate significantly, the entire balance due to us shall become due immediately, even if such balances relate to claims from other deliveries. In such a case, we shall be entitled to demand interest on arrears in accordance with Section 288 German Civil Code (BGB). A flat-rate reminder fee of €5.00 for each reminder that does not justify default is hereby agreed.
7. The customer may only offset against our claims from purchase contracts if their counterclaim has been recognised or they have a legal entitlement. In the case of contracts for work and services, the customer may also offset if their counterclaim relates to the costs of remedying defects and/or additional completion costs arising from the respective contract for work and services. They may only assert a right of retention insofar as it is based on claims arising from the purchase or work contract.
8. With the exception of claims for payment in accordance with Section 354a German Commercial Code (HGB), the customer is not entitled to assign existing claims against us.
§ 3 Delivery
1. Delivery dates and delivery periods, which can be agreed as binding or non-binding, must be specified in writing. Delivery periods begin when the contract is entered into.
2. If, due to circumstances for which we are responsible, we are prevented from delivering the delivery item on the agreed date or within the agreed period or from complying with a completion date agreed in writing, we shall be liable in accordance with statutory provisions.
3. In the case of force majeure and events which, through no fault of our own, temporarily prevent us from delivering the goods or services on the agreed date or within the agreed period, we shall be entitled to postpone the delivery or service for the duration of the hindrance plus a reasonable lead period. Should the delivery time be extended or we be released from our obligation, the customer shall not derive any claims for damages as a result. Should such disruptions lead to a delay in performance of more than four months, the customer may withdraw from the contract. Other rights of cancellation remain unaffected.
4. The customer must accept the delivery or service. If the customer is in default of acceptance, we shall be entitled to demand compensation for damage we suffer as a result.
5. The manufacturer reserves the right to make changes to the design or shape, deviations in colour and changes to the scope of delivery during the delivery period, provided that the changes or deviations are reasonable for the customer, taking into account our interests. Insofar as we or the manufacturer use symbols or numbers to designate the order or the ordered delivery or service, no rights can be derived from this alone as regards substantiation of the delivery item or the scope of delivery.
6. We are permitted to make reasonable partial deliveries or render partial services at any time.
§ 4 Installation by qualified specialist personnel
The customer must have the purchased items installed by qualified specialist personnel.
§ 5 Cost estimates, technical documents, samples
1. Offers, cost estimates, drawings, illustrations, brochures, catalogues, circulars, dimensions, weights or other performance data are subject to change and are only binding if this has been expressly agreed in writing. Property rights and copyrights to cost estimates, illustrations, drawings or other documents are reserved. Disclosure of such items to third parties is only permitted with written consent.
2. Technical application advice, whether verbal or in writing, is given without obligation and does not absolve the customer from their responsibility to carry out their own tests, taking into account the intended application purposes.
3. If the contract with the customer, which is the subject of the plans, drafts, drawings and/or calculations, is not concluded within the offer period, the customer must return the relevant documents immediately at their own expense and destroy or delete, at their own expense, any copies of the relevant documents and/or files they have made for the purpose of the proposed contract.
4. Tools, samples and other devices produced in connection with fulfilling the contract shall remain our property unless the customer has paid a separate fee agreed in writing in the contract.
§ 6 Provisions for purchase contracts
I. Transfer of risk for sales contracts
1. The risk of accidental loss and accidental impairment of the goods shall pass to the customer upon handover.
2. Risk shall pass to the customer upon dispatch of the goods when the goods are passed to the person undertaking the transport or when the goods have left our warehouse for the purpose of dispatch.
II Warranty for material defects in sales contracts, place of subsequent performance
1. The customer must inspect the quantity and external appearance of the delivered products within 14 days of receipt of a delivery and notify us in writing of any errors in quantity and any externally visible defects. In the absence of such immediate notification, the delivery shall be deemed to have been accepted.
2. The limitation period for material defects is 1 year for newly manufactured goods, with the exception of those whose durability/usability is labelled as shorter. The sale of used items is subject to the exclusion of any liability for material defects and defects of title, unless the defect was fraudulently concealed or a guarantee for the quality of the item was given (Section 444 German Civil Code (BGB)).
3. The customer’s claims for rectification of defects are primarily limited to a claim for subsequent performance, i.e. a claim for rectification or replacement delivery. We may choose between repair or replacement at our discretion. If the repair or replacement delivery fails, the customer may demand a reduction in price or withdraw from the contract. Rectification of defects shall be deemed to have failed if and to the extent that such rectification has not occurred within a reasonable deadline set for subsequent performance. The conditions under which the right of cancellation may be exercised are determined by Section 323 German Civil Code (BGB).
4. The customer must assert claims for rectification of defects with us in writing.
5. In the event of a defect based on incorrect assembly instructions, the obligation to accept liability for material defects shall only apply if the item sold was assembled or installed by a suitably qualified professional. The customer must demonstrate and prove that the work had been carried out professionally.
6. The place of subsequent performance for all warranty claims of the customer is primarily the original place of performance, Rodenberg in the case of purchase contracts, unless otherwise agreed in writing. In exceptional cases if this represents a considerable inconvenience for the customer, the place of subsequent performance shall be the delivery address of the customer notified to us at the time of the contract.
7. The limitation of liability specified in § 8 applies.
III. Company recourse for sales to commercial resellers
1. If the customer has resold the sold item to a consumer in the normal course of their commercial business and had to take back this item or reduce the purchase price by virtue of its defects, they have the right to assert claims for material defects against us.
2. The customer can also demand compensation for the costs they incurred in relation to the consumer if the defect claimed by the consumer was already present when the risk was transferred to the customer and the costs incurred can be regarded as reasonable in a third-party comparison.
3. The customer has no claim for damages against us within the scope of this company recourse.
§ 7 Special rules for contracts for work
I. Right of cancellation in accordance with Section 649 German Civil Code (BGB)
1. If the work contract has an initial term of more than 2 years, the customer has the unrestricted right to terminate the work contract at any time before completion of the work (Section 649 German Civil Code (BGB)). If the initial term is 2 years or less, the customer’s right under Section 649 German Civil Code (BGB) is limited to cancellation for good cause.
2. If the customer is entitled to a corresponding right of cancellation in accordance with § 1, the remuneration owed to us in accordance with Section 649 sentence 2 German Civil Code (BGB) shall amount to a lump sum of 10% of the original order amount plus value added tax, if applicable, taking into account all expenses saved by us. The customer is entitled to prove that the amount owed to us is significantly less than 10% of the original order amount. Similarly, we shall be entitled to prove that the remuneration owed in accordance with Section 649 (2) German Civil Code (BGB) is greater than 10% of the original order amount.
II. Sole responsibility/substitutability
The customer authorises us to subcontract execution of the corresponding work contracts.
III. Liens
1. We are entitled to a contractual lien on items that have come into our possession as a result of the order in respect of claims we might have arising from the order.
2. The contractual lien may also be asserted for claims arising from previously performed work and other services insofar as they are related to the subject matter of the order. The contractual lien shall only apply to other claims arising from the business relationship insofar as these are undisputed or a there is a legal right and the object of the order belongs to the customer.
IV. Warranty claims
1. The statutory limitation period shall apply in the case of the construction of buildings and/or the provision of planning or monitoring services (Section 634 a (1) (2) German Civil Code (BGB)). Otherwise, the customer’s claims for material defects shall become time-barred one year after acceptance of the ordered product. If the customer accepts the ordered product despite being aware of a defect, they shall only be entitled to claims for material defects if they reserved the right to do so at the time of acceptance.
2. The ordered product shall be deemed to have been accepted by the customer at our premises, unless otherwise agreed in writing.
3. If the ordered product is the delivery of movable goods to be manufactured or produced and if the customer is a legal entity under public law, a special fund under public law or an enterprise acting in the exercise of their commercial or independent professional activity when entering into the contract, the customer’s claims for material defects shall become statute-barred one year after delivery; § 6 II number 2 sentence 1 shall apply at the same time.
4. We shall not be liable if the materials supplied by the customer (in particular, conditions of use, operating and process conditions, formulations, specifications and other circumstances and parameters relevant to the service to be provided) cause a defect.
5. In the case of contracts for work and services, the place of subsequent performance for all warranty claims of the customer is the contractually agreed place of performance of the work. Unless otherwise agreed, the place of performance of the work shall be the delivery address to the customer.
6. In all other respects, the provisions of our General Terms and Conditions of Business under sales law (§ 6 II. 3, 4 and 7) shall apply accordingly, in particular the limitation of liability for damages in accordance with § 6. II. 7, § 8.
§ 8 Liability
We shall be liable for damages in accordance with statutory provisions if the customer
a) asserts claims for damages based on a separate contractual guarantee of quality or the Product Liability Act;
b) asserts claims for damages based on malice, intent or gross negligence, including malice, intent or gross negligence on the part of our representatives or vicarious agents. In the event of gross negligence, however, liability shall be limited to damage which is foreseeable and typically liable to occur;
c) asserts claims for damages relating to injury to life, limb and/or health; and/or
d) asserts claims for damages or other claims which relate to the breach of our essential contractual obligations, known as cardinal obligations. Cardinal obligations are those obligations which the contract must grant the customer according to its meaning and purpose or whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely.
Other than in cases a) - d), we do not accept liability for damages.
§ 9 Industrial property rights, domains, e-mails
1. The customer does not acquire any rights to pre-existing industrial property rights by virtue of conclusion of a purchase contract and the corresponding delivery of goods. In particular, the customer does not receive any kind of licence, neither explicitly nor implicitly, and in particular no licence to include a trademark of ours in their business documents.
2. In the case of a contract for work and services, we shall grant the customer the non-transferable right, unrestricted in terms of space and time, to use all work results protected by copyright for the purpose of utilising the subject matter of the contract for work and services concurrently against full payment of the remuneration for the work and services, and thereafter free of charge. Insofar as third parties are commissioned to do work, we will ensure that the third parties contractually grant us the right of use.
3. The customer may not register domains in Germany or abroad that contain terms that are protected by our trademark rights or company names. If the customer nevertheless registers such domains contrary to this provision, they hereby irrevocably agree either to transfer such domains to us free of charge or to cancel them, at our discretion. This applies mutatis mutandis to addresses for receiving electronic mail or for presences on social networks.
4. The customer may not remove, distort or otherwise conceal any references to industrial property rights of us or third parties on the delivered product or its packaging. The customer may also not add any corresponding notices, stickers or similar or repackage the goods without the consent of the respective rights holder.
5. No use may be made of our industrial property rights and/or domains without our prior written consent.
§ 10 Return of goods/restocking fee
1. 1. Insofar as we voluntarily take back goods from the customer, the following shall apply: Goods may only be returned if they are in a proper, saleable condition and have not been customised. Upon return of the goods, the customer shall receive a credit note to the current value of the goods, less a restocking fee in the case of goods that are subject to a shelf life. We shall be authorised to offset credit note amounts without restriction.
2. The restocking fee is a flat rate of 10% of the value of the returned goods per item, unless a different value is agreed on the occasion of the return.
§ 11 Retention of title, insurance obligation
1. The delivery item shall remain our property until the claims to which we are entitled on the basis of the purchase or work contract have been settled. If the customer is an enterprise, we reserve title to all delivery items until all payments arising from the business relationship have been received.
2. If the customer is in breach of contract, in particular in the event of payment default, we shall be entitled to withdraw from the contract and demand the return of the goods subject to retention of title. The customer is obliged to surrender the goods. After taking back the delivery item, we are authorised to dispose of it. The customer must reimburse us for the difference between the purchase price and the net proceeds of disposal. We reserve the right to assert further claims against the customer.
3. The customer shall be entitled to resell the delivery items in the ordinary course of their business; however, they hereby assign to us all claims in the amount of the final invoice amount of the claim owed by them (including value added tax) which accrue to him from the resale against their customers or third parties, irrespective of whether or not the delivery items have processed before being resold. The customer remains authorised to collect these claims even after the assignment. Our right to collect the claims ourselves remains unaffected by this. We undertake not to collect the claims ourselves as long as the customer fulfils their payment obligations in accordance with the contract and no application for the opening of insolvency proceedings has been filed. Should this have happened, the customer must, at our request, provide us with all information required to collect the assigned claim, hand over all relevant documents and inform the debtors concerned (third parties) of the assignment.
4. Goods are always processed or transformed by the customer on our behalf. If the delivery items have been processed with other items not belonging to us, we shall acquire co-ownership of the item pro rata to the value of the delivery items against other processed items at the time of processing.
5. If the delivery items have been inseparably combined with other items not belonging to us, we shall acquire co-ownership of the new item pro rata to the value of the delivery item against the other combined items. The customer shall hold the co-ownership on our behalf.
6. The customer may not pledge the delivery items nor assign them as security. If such a transfer by way of security already occurs upon delivery of the goods (e.g. due to the assignment by way of security of all stock from time to time) or in the event of seizure or confiscation or other dispositions by third parties, the customer must notify us immediately and provide us with all information and documents necessary to safeguard our rights. Enforcement officers or relevant third parties must be informed of our ownership. Our prior written consent shall be required prior to entering into financing agreements which include the transfer of ownership of our reserved goods (e.g. sale and lease-back agreements), unless the agreement places an irrevocable obligation on the financing institution to pay the purchase price directly to us.
7. In the event that the value of securities we hold exceeds the claims to be secured by more than 20%, we shall be obliged to release securities to which we are entitled at the customer’s request. The collateral to be released shall be at our sole discretion.
8. The customer must insure the goods subject to retention of title against all usual risks of loss for not less than the amount of the purchase price with an insurance company based in Germany, store them separately, treat them with care and label them at our request. Claims against the insurance company arising from a case of damage are hereby assigned to us to the amount of the value of the reserved goods. We accept this assignment. At our request, the customer must also provide us with copies of the insurance contract in German or an insurance confirmation in German.
§ 12 Data protection
In accordance with Section 33 Federal Data Protection Act (BDSG), we point out that we process and store all customer and supplier-related data by means of electronic data processing.
§ 13 Final provisions
1. The place of jurisdiction for all disputes arising from the contractual relationship is Stadthagen if the customer is an enterprise, a legal entity under public law or a special fund under public law. We are also entitled to take action at the customer’s head office if the customer is an enterprise.
The place of jurisdiction for all disputes arising from the contractual relationship is Stadthagen if the customer is an enterprise, a legal entity under public law or a special fund under public law. We are also entitled to take action at the customer’s head office if the customer is an enterprise.
3. We are generally not willing or obliged to participate in dispute resolution proceedings before a consumer arbitration board.
4. Should individual provisions of the contract with the customer, including these General Terms and Conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic effect comes as close as possible to that of the invalid provision.
Last updated: April 2020