General Terms and Conditions ("GTC") of DREHTAINER GmbH
Section 1 - Validityof these conditions and defence clause
- Validity. These GTC apply to all current and future business relationships of DREHTAINER GmbH ("Seller") with its buyers (“Buyer”), in particular to contracts for the sale and/or delivery of goods ("Goods"), irrespective of whether the Seller manufactures the Goods itself or purchases them from third parties (§§ 433, 650 BGB). Offers, deliveries, services and other legal acts of the Seller within the scope of the operation of its commercial business shall be made exclusively on the basis of these GTC. These shall also apply to all future legal acts within the framework of the respective business relationship, even if they are not expressly agreed again. These GTC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that the Seller has expressly consented to their application. This requirement of consent shall apply in any case, for example even if the Seller makes delivery to the Buyer without reservation in the knowledge of the Buyer's general terms and conditions. These GTC shall be deemed accepted at the latest upon acceptance of the Goods or services.
- Buyer. Purchasers within the meaning of these GTC shall also be all other negotiating and contracting partners of the Seller. If the negotiating or contracting partner is not a merchant within the meaning of the German Commercial Code (HGB), it shall nevertheless be subject to the provisions of the HGB for commercial transactions among fully qualified merchants, insofar as this is legally permissible.
- Further use. These terms and conditions of sale and delivery may only be reused with the written consent of the Seller.
- Form. Legally relevant declarations and notifications by the Buyer in relation to the contract between the Buyer and the Seller (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in case of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
- Statutory provisions. References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
Section 2 - Offers, conclusion of contracts, assignability and withdrawal
- Offers. The offers of the Seller are subject to change and non-binding. They shall only apply while stocks last. The Seller shall notify the customer immediately of any unavailability; any counter-performance already rendered shall be reimbursed unless this is opposed by justified counter-claims on the part of the Seller. Offers shall only become binding once they have been confirmed in writing by the Seller. Delivery and invoicing shall be deemed equivalent to written confirmation. Supplements, deviations or ancillary agreements require the written confirmation of the Seller in order to be legally effective.
- Conclusion of Contract. By placing an order for Goods, the Buyer bindingly declares that he wishes to purchase the ordered Goods. The Seller shall be entitled to accept the contractual offer contained in the order within two weeks of receipt by the Seller. Acceptance may be declared either in writing or by issuing an invoice or delivering the Goods to the Buyer.
- Delivery periods. If the Seller is unable to meet binding delivery deadlines for reasons for which it is not responsible (non-availability of the service), it shall inform the Buyer of this without delay and at the same time notify the Buyer of the expected new delivery deadline. If the service is also not available within the new delivery period, it shall be entitled to withdraw from the contract in whole or in part; it shall immediately reimburse any consideration already paid by the Buyer. A case of non-availability of the performance in this sense shall be deemed to be in particular the non-timely self-delivery by a supplier of the Seller if it has concluded a congruent hedging transaction, neither it nor its supplier is at fault or it is not obliged to procure in the individual case.
- Nature of performance. All performances by the Seller are debts to be collected by the Buyer or debts to be paid by the Seller if the latter has been agreed.
- Separation. All deliveries, including partial deliveries from current transactions, shall each be deemed to be independent contracts; they shall be invoiced separately, shall be due for payment separately and shall have no influence on other deliveries.
- Verbal agreements. The Seller's sales employees are not authorized to make verbal subsidiary agreements or to give verbal assurances that go beyond the content of the written contract.
- Prior sale. The Seller expressly reserves the right of prior sale.
- Product descriptions. All - also written - notes and confirmations are approximate product descriptions, unless they are specifically marked with the written notes "Agreed quality". All product descriptions and manufacturer's specifications which are the subject of the individual contract or which were publicly announced by the Seller at the time of the conclusion of the contract shall be deemed to be anagreement on the quality of the Goods. Only with this specific labelling shall a characteristic be deemed to be an individually agreed quality of the product. In particular, the statements and descriptions contained in advertising material, manuals, operating instructions and/or price lists do not constitute an agreement on a specific quality. The same applies to all drawings, illustrations, dimensions, weights or other performance data. However, the Seller shall not be liable for public statements made by the manufacturer orother third parties to which the Buyer has not drawn the Seller's attention as being decisive for the purchase.
- Changes. We reserve the right to make technical changes as well as changes in shape, color and/or weight within the scope of what is reasonable. We reserve the right to make deviations in the course of technical progress without this giving rise to any rights against the Seller.
- Non-binding information. Information in the manual, documentation and/or advertising material that refers to expansion possibilities of a product or to available accessories is also non-binding.
- Cancellation. If the Seller cancels the contract at the Buyer's request, the Buyer shall bear the costs incurred up to that point, but at least 2% of the invoice value, subject to the assertion of further damage items incurred, in particular the difference in proceeds between the agreed purchase price and the purchase price achieved by distress sale.
- Assignment. All rights against the Seller are only due to the direct Buyer and are not assignable.
- Creditworthiness. If the Seller becomes aware of circumstances which call into question the creditworthiness of the Buyer, in particular if he stops his payments, or if the Seller becomes aware of other similar circumstances, the Seller shall also be entitled for this reason to withdraw from the contract in accordance with the statutory provisions and to declare the entire remaining debt due immediately. In this case, the Seller shall also be entitled to demand advance payments or the provision of security. The Seller may also withdraw from any prolongation commitment after setting a deadline.
- Endangering of the Seller's claims. If, after conclusion of the contract, it becomes apparent (e.g. by filing for insolvency proceedings) that the Seller's claim to the purchase price is jeopardized by the Buyer's inability to pay, the Seller shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (Section 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), the Seller may declare withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.
Section 3 - Prices, sales tax, packaging and freight charges
- Applicable prices. Unless otherwise agreed in individual cases, the current prices quoted by the Seller at the time of conclusion of the contract shall apply from the registered office of DREHTAINER GmbH, Alte Grenze 1, D-19246 Valluhn Businesspark A24, plus the respective statutory value added tax. The prices stated in the Seller's printed materials and offers are subject to change.
- Packaging, freight etc. Unless otherwise agreed, the prices include normal packaging (insofar as packaging is required), but do not include freight and customs duties. If the Seller grants freight reimbursement, the Buyer shall pay the costs for freight, customs duties etc. free of discount; reimbursement shall be made against receipt of the payment. Special packaging shall be charged at cost price.
- Price increases. If, between the conclusion and fulfilment of the contract, wage and salary rates, taxes, customs duties or fees or other charges for freight are increased or newly introduced, or if prices are increased due to a change in the currency parity, the Seller shall be entitled to increase the purchase price accordingly. Upon express written request of the Buyer, the Seller shall provide evidence of the changes in the aforementioned factors.
- Foreign customs and import regulations. Foreign customs and import regulations shall be taken into account by the Seller to the best of its knowledge. However, the Seller shall only be liable in this respect for intent and gross negligence.
Section 4 - Delivery and performance time, acceptance
- Delivery dates and delivery periods. Delivery dates or delivery periods are non-binding; however, they can be specially agreed in writing with the note: "Guaranteed delivery by ...“ may be specially agreed. If nothing has been agreed, the delivery period stated by the Seller in the acceptance shall apply.
- Fulfilment. Delivery times shall be deemed to have been fulfilled by the Seller at the latest when the Goods of the Seller or its vicarious agents have been loaded or, in the absence of timely provision of means of transport by the Buyer, are ready for loading. The Seller shall notify the Buyer of the time of loading or the time of readiness for loading in a suitable manner.
- Delays, force majeure. The Seller shall not be responsible for delays in delivery and performance due to force majeure and due to events that make delivery significantly more difficult or impossible for the Seller, even in the case of bindingly agreed dates and deadlines. This includes in particular strikes, lockouts, official orders or legal regulations, pandemics etc., even if they occur at the Seller's suppliers or their sub-suppliers. Such delays shall entitle the Seller to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up period or to withdraw from the contract in whole or in part due to the part not yet fulfilled. Any services already rendered shall be returned in accordance with the statutory provisions, any benefits derived shall be surrendered or compensation for lost value shall be paid.
- Duration of the hindrance. If the impediment lasts longer than three months, the Buyer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. The Buyer may not derive any claims for damages from any aforementioned extension of the delivery period or if the Seller has been released from its obligation to deliver or perform.
- Setting of an additional period of time. If the Seller exceeds specially agreed delivery dates without the above-mentioned reasons, the Buyer is entitled to set a grace period of four weeks in writing for delivery. Only after the expiry of this grace period may the Buyer assert warranty rights.
- Compensation for delay. If the Seller is responsible for the non-compliance with deadlines and dates agreed in writing ("binding deadlines and dates") or is in default, the Buyer shall been titled to compensation for default in the amount of 0.5 % for each full week of default, but in total not more than 5 % of the net invoice value of the deliveries and services affected by the default. Any further claims are excluded unless the delay is due to at least gross negligence on the part of the Seller. The Seller reserves the right to prove that the Buyer has not suffered any damage or only significantly less damage than the aforementioned lump sum.
- Partial Deliveries and Partial Services. The Seller shall be entitled to make partial deliveries and render partial services at any time.
- Transfer of risk, acceptance. The risk of accidental loss and accidental deterioration of the Goods shall pass to the Buyer at the latest upon handover. In case of a sale by delivery to a place other than the place of performance (Schickschuld), however, the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay shall already pass upon delivery of the Goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed equivalent if the Buyer is in default of acceptance.
- Default in acceptance. If the Buyer is in default of acceptance, fails to cooperate or delays the Seller's delivery for other reasons for which the Buyer is responsible, the Seller shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). Unless otherwise agreed, the Seller shall charge a lump-sum compensation of EUR 5.00 per container per calendar day, starting with the delivery deadline or - in the absence of a delivery deadline - with the notification that the Goods are ready for dispatch.
The proof of higher damages and the legal claims of the Seller (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The Buyer shall be entitled to prove that the Seller has not incurred any damage or only significantly less damage than the aforementioned lump sum.
Section 5 - Retention of title
- Goods subject to retention of title. The Goods shall remain the property of the Seller (reserved Goods) until all claims of an ongoing business relationship (including all balance claims from current account) to which the Seller is entitled against the Buyer for any legal reason now or in the future have been settled. The Buyer shall provide the Seller with the securities referred to in the following paragraphs, which shall be released at the Seller's discretion upon request, insofar as their value exceeds the claims by more than 10%, not only for a short period of time. The Buyer shall treat the reserved Goods with care.
- Resale. The Buyer is authorized to sell the reserved Goods in the ordinary course of business as long as he is not in default. Pledges or transfers of ownership by way of security by the Buyer are not permitted. By way of security, the Buyer hereby assigns to the Seller all claims arising from the resale or any other legal reason (insurance, tort,etc.) in respect of the reserved Goods (including all claims from the current account) in full or in the amount of any co-ownership share. The Seller hereby accepts the assignment. The Seller authorizes the Buyer - revocable at any time - to collect the claims assigned to the Seller for its account in its own name.
- Processing. The Buyer is entitled to process the Goods in the ordinary course of business. Processing and transformation shall be carried out for the Seller as manufacturer, but without any obligation for the Seller.
The retention of title extends to the full value of the products resulting from the processing, mixing or combining of the Seller's Goods, whereby the Seller shall be deemed to be the manufacturer in this respect.
- Duty to notify. The Buyer is obliged to notify the Seller immediately of any access by third parties to the Goods, for example in the event of seizure, as well as any damage to or destruction of the Goods. The Buyer shall notify the Seller in writing without delay if an application is made to open insolvency proceedings or if third parties (e.g. seizures) seize the Goods belonging to the Seller.
- Breach of contract by the Buyer. In the event of conduct by the Buyer in breach of contract - in particular default in payment - the Seller shall be entitled to take back the Goods subject to retention of title or, if applicable, to demand assignment of the Buyer's claims for return against third parties. The taking back or seizure of the Goods subject to retention of title by the Seller shall not constitute a withdrawal from the contract, unless the provisions of §§ 346 ff. BGB (German Civil Code) do not apply, unless the Seller expressly declares its withdrawal from the contract, if it has previously set the Buyer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.
- Expiry of rights and authorizations. The rights to resell, use or install the Goods subject to retention of title and the authorization to collect the assigned claims shall expire upon cessation of payments, application for or opening of insolvency proceedings, resolution of sequestration as well as the opening of judicial or extrajudicial composition proceedings concerning the assets of the Buyer. Direct debit authorizations given by the Seller shall also expire in the event of a cheque or bill protest. In addition, the Seller is entitled in this case to revoke the Buyer's authorization to further sell and process the Goods subject toretention of title.
- Consequence of the repossession. Notwithstanding the Buyer's obligation to pay, the Seller shall be entitled to (a) sell the Goods taken back at best price on the open market or (b) credit them at the market price (realizable proceeds) or (c) credit them to itself at the contract price - less all bonuses, discounts and other reductions granted and less a reduction in value of 30 % - unless the Buyer immediately proves alower reduction in value.
Section 6 - Warranty
- Warranty. The Seller warrants that the products offered comply with the provisions of the statutory warranty.
- Defect rights. The Seller shall initially provide a warranty for defects in the Goods at its discretion by rectifying the defect or supplying a replacement. If the supplementary performance fails, the Buyer may in principle demand a reduction in price or withdrawal from the contract at his discretion. However, in the event of only a minor breach of contract, in particular in the event of only minor defects, the Buyer shall not be entitled to withdraw from the contract. The Seller's right to refuse subsequent performance under the statutory conditions remains unaffected.
- Minor deviations. Any deliveries may contain minor deviations in color, design or material; they do not constitute a deviation from the agreed quality.
- Language of the operating instructions. The delivery of operating instructions in German is permissible as long as the subject matter of the contract cannot yet be assigned to a specific market with corresponding language requirements. The same applies if the subject matter of the contract is generally only available in German.
- Assertion. The Buyer must notify the Seller of any recognizable defects in writing without delay, at the latest within a period of two weeks after receipt of the delivery item, and provide a detailed explanation; hidden defects must be notified in writing without delay after discovery. Furthermore, the Buyer's claims for defects presuppose that he has complied with his statutory duties of inspection and notification of defects (§§ 377, 381 HGB). Otherwise, the assertion of warranty claims is excluded. In the case of delivery by forwarding agents and other delivery agents, complaints, insofar as they relate to the transport (damage, missing quantities etc.), must be noted on the delivery note and consignment note and confirmed by the signature of the driver. Upon delivery, the Buyer shall immediately arrange for the competent authorities to record the facts and list the damage, shortages, etc., otherwise the Seller shall be released from any liability. The respective responsible offices will be named to the Buyer by the Seller in the annexes to the contract.
- Obligations of the Buyer. The Buyer is obliged, without claiming compensation for storage or other costs, to carefully store the rejected Goods and keep them closed at the disposal of the Seller. Otherwise the Buyer loses his rights for defects and warranty. Liability for normal wear and tear is excluded.
- Warranty period. The warranty period begins on the day of the transfer of risk and ends after 12 months. Other manufacturer's guarantees remain unaffected.
- Significance for terms of payment. Defects in the products do not cause any change in the agreed terms of payment.
- Packaging and transport. A warranty for packaging and transport is excluded. In the event of a return, the Buyer shall bear the costs for proper packaging for transport to the Seller.
- Complaints. Goods that are the subject of a complaint must be returned carriage paid. Freight costs will be refunded if the complaint is justified.
- Examination of warranty cases. If the inspection of the product subject to complaint shows that there is no warranty case, the Buyer shall bear the costs of the inspection (expert opinion if necessary) including all ancillary costs (travel costs, overnight stays, etc.).
- Legal consequences. If the Buyer chooses to withdraw from the contract due to a legal or material defect after subsequent fulfilment has failed, he shall not been titled to any additional claim for damages due to the defect. If the Buyer chooses compensation for damages after subsequent performance has failed, the Goods shall remain with the Buyer if this is reasonable for him. The compensation shall be limited to the difference between the purchase price and the value of the defective item. This shall not apply only if the Seller has fraudulently caused the breach of contract. The right of withdrawal is excluded in the case of an insignificant defect.
- Assembly instructions. If the Buyer receives defective assembly instructions, the Seller shall only be obliged to deliver assembly instructions that are free of defects and this only if the defect in the assembly instructions prevents proper assembly.
Section 7 - Payments, objections and defences
- Due date. Unless otherwise agreed, the purchase price is due 30 calendar days after invoicing and delivery or acceptance of the goods. After expiry of this date, the Buyer shall be in default without the need for a reminder. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. The Seller reserves the right to prove and claim higher damages for default from the Buyer. With respect to merchants, the Seller's claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected.
- Payments. The Seller is entitled - even if the Buyer's provisions are different - to first offset payments against the Buyer's older debts. If costs have already been incurred by the Seller and interest claims have arisen due to default or other breaches of obligations by the Buyer, the Seller shall be entitled to offset the payments first against the costs (management without order, damages, etc.), then against the interest claim and finally against the main performance.
- Fulfilment. A payment shall only be deemed to have been made when the Seller can dispose of the amount.
- Defenses. The Buyer shall only been titled to set-off, retention or reduction against the Seller's payment claims, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established or are undisputed. However, the Seller shall be entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment.
Section 8 - Limitations of liability
- Unlimited liability. The Seller shall be liable without limitation in the event of intent, gross negligence and culpable injury to life, limb or health.
- Limited liability. In the event of slight negligence, the Seller shall furthermore only be liable in the event of a breach of material contractual obligations, i.e. obligations the fulfilment of which is a prerequisite for the proper performance of the customer contractor the breach of which jeopardizes the achievement of the purpose of the contract and on the observance of which the customer may regularly rely. In these cases, the liability of the Seller is limited to the damage foreseeable at the time of conclusion of the contract and typical for the contract. The unlimited liability according to section 8.1 remains unaffected.
- Exclusion ofliability. Beyond clauses 8.1 and 8.2, the Seller shall not be liable for slight negligence.
- Exceptions. The above limitations of liability do not apply to liability under the Product Liability Act (ProdHaftG) and within the scope of guarantees assumed in writing.
- Employees etc. This clause 8 shall also apply in favor of the Seller's employees, representatives, organs andvicarious agents.
- Statuteof Limitations. Claims for damages by the Buyer due to a defect shall become statute-barred (i) in the case of purchase contracts after one year from delivery, (ii) in the case of contracts for work and services after one year from acceptance; and (iii) in the case of contracts for work and services according to the statutory limitation period.
Section 9 - General regulations
- Headings. Headings in these GTC only serve to facilitate readability and have no significance for the interpretation of these GTC.
- Deviations. Deviations from these GTC are only effective if the Seller confirms them in writing.
- Applicable law. The law of the Federal Republic of Germany shall apply to these GTC and the entire legal relationship between the Seller and the Buyer, including all contracts concluded with the inclusion of these GTC, to the exclusion of unified law, in particular the UN Convention on Contracts for the International Sale of Goods.
- Place of performance. The place of performance for all obligations arising from the contractual relationship is the registered office of the Seller (Alte Grenze 1, D-19246 Valluhn Businesspark A24).
- Place of jurisdiction. The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship - insofar as it has been concluded with merchants - also insofar as they relate to the conclusion of the contract, is, insofar as permissible, Schwerin, Germany.
- Ineffectiveness. Should a provision in these GTC or a provision within the scope of other agreements be or become invalid, this shall not affect the validity of any other provision or agreement. The ineffective clause shall be replaced by the one that comes closest to the economic purpose intended by the affected clause.
Status: May 2021
General Terms and Conditions of Purchase ("GPC") of DREHTAINER GmbH
Section 1 - Validityof these conditions and defence clause
- Validity. These GPC shall apply to all present and future business relations of DREHTAINER GmbH ("Purchaser") with its suppliers and business partners ("Supplier"), in particular to contracts for the purchase and/or delivery of goods ("Goods"), irrespective of whether the Supplier manufactures the Goods itself or purchases them from third parties (§§ 433, 650 BGB). Offers, services and other legal acts of the Purchaser within the scope of the operation of its commercial business shall be made exclusively on the basis of these GPC. They shall also apply to all future legal acts within the scope of the respective business relations, even if they are not expressly agreed again. The present GPC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Supplier shall only become part of the contract if and to the extent that the Purchaser has expressly consented to their application. This requirement of consent shall apply in any case, for example even if the Purchaser, being aware of the Supplier's general terms and conditions, accepts the Supplier's deliveries without reservation.
- Supplier. All other negotiating and contracting partners of the Purchaser shall also be deemed to be suppliers within the meaning of these GPC. If the negotiating or contracting partner is not a merchant within the meaning of the German Commercial Code (HGB), it shall nevertheless be subject, to the extent permitted by law, to the provisions of the HGB for commercial transactions among fully qualified merchants.
- Form. Legally relevant declarations and notifications by the Supplier with regard to the contract (e.g. setting of deadlines, reminders, withdrawal) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in the event of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
- Statutory provisions. References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GPC.
- Further use. These GPC may only be further used with the written consent of the Purchaser.
Section 2 - Conclusion of contract
- Order. The Purchaser's order shall be deemed binding at the earliest upon written submission or confirmation. The Supplier shall notify the Purchaser of obvious errors (e.g. spelling 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 to have been concluded.
- Acceptance. The Supplier shall be obliged to confirm the Purchaser's order in writing within a period of 21 days/weeks or, in particular, to execute it without reservation by dispatching the Goods (acceptance). A delayed acceptance shall be deemed a new offer and requires acceptance by the Purchaser.
Section 3 - Time of performance, impossibility and compensation for delay
- Delivery. Delivery dates or delivery periods of the Supplier are binding and the basis of business. If the delivery time is not specified in the order and has not been agreed otherwise, it shall be two weeks from the conclusion of the contract. The Supplier is obliged to inform the Purchaser in writing without delay if he is unlikely to be able to meet agreed delivery times - for whatever reason.
- Default. Delay on the part of subcontractors must be reported to the purchaser in writing without delay; it does not justify exceeding the deadline.
- Lack of information. If reasons for which neither the Supplier nor its sub-suppliers are responsible or if the fault of the Purchaser forces the Supplier to exceed a deadline, the Supplier may no longer invoke the circumstances if it fails to comply with its obligation to provide information under Clause 3.1.
- Perishing. Loss of parts of performance without fault can only be asserted as a reason for exceeding the deadline by immediate proof in one piece.
- Legal consequences. If the Supplier fails to perform or fails to perform within the agreed delivery period or is in default, the rights of the Purchaser - in particular to rescission and damages - shall be determined in accordance with the statutory provisions. The provisions in Clause 3.6 shall remain unaffected.
- Compensation. If the Supplier is responsible for the non-compliance with agreed deadlines and dates or is in default, the Purchaser shall have a lump-sum claim to compensation for default in the amount of 1% for each commenced week of default, but in total not more than 5% of the net price of the deliveries and services affected by the default. The Purchaser reserves the right to prove that higher damages have been incurred. The Supplier shall be granted the right to prove without delay that no damage at all or only significantly less damage has been incurred. We expressly reserve the right to assert further claims for damages.
- Partial services and partial deliveries. The Purchaser may at any time reject partial deliveries and partial services of the Supplier which have not been agreed.
Section 4 - Scope of services
- Obligations to be discharged at the place of performance. All services rendered by the Supplier shall be a debt to be discharged at the Purchaser's domicile.
- Functionality and intended use. The Supplier guarantees that his contractual performance is functional and suitable for the intended purpose. For this purpose, he is obliged to inform himself on his own responsibility about the relevant circumstances, in particular existing preconditions or special features at the construction or assembly site. By accepting or approving drawings or other documents, the Purchaser does not waive the contractual and/or statutory claims to which it is entitled.
- Performance standards. The performance must comply with the legal requirements, in particular the Equipment Safety Act, the occupational health and safety and accident prevention regulations, the existing guidelines and standards as well as the generally accepted rules and the state of the art. The Purchaser shall have the right to inspect the manufacture at any time, to object to improper workmanship and to reject defective parts from the outset.
- Right of Use. The order also includes the granting of a non-exclusive, permanent, unlimited and transferable right of use by the Supplier to all technical documents (including those of the sub-suppliers) as well as the delivery of these documents which are necessary for the maintenance and operation of the service provided as well as for the manufacture of spare and reserve parts. These technical documents must be in German and in accordance with the International System of Units SI. The Supplier shall comply with reasonable requests for changes free of charge. If requested changes may have a detrimental effect on technical data, the Supplier shall inform the Purchaser thereof in writing.
- Scope of Services. The scope of services includes that
(a) the performance to be rendered and its use by the Purchaser or by third parties are and remain free from rights (patents, utility models, trademarks, copyrights, etc.) of both third parties and the Supplier itself;
(b) the Purchaser has the right, free of charge, to carry out repairs and modifications to the purchased Goods and services itself or to have them carried out by third parties, and to manufacture replacement and/or spare parts itself or have them manufactured by third parties;
(c) the Purchaser shall have the right, free of charge, to demand the Supplier's production documents for the manufacture of the object of performance by itself or by third parties and to use them if the Supplier fails to perform in accordance with the contract after a grace period has been set to no avail.
- Minor deviations. Even minor deviations in color, design or material do not have to be accepted by the Purchaser.
- Operating instructions. The Supplier shall always enclose assembly and operating instructions in German with its products. If the Purchaser receives defective assembly instructions, it shall also be entitled to assert all warranty rights in respect of the complete product series.
- Complaints. The Supplier shall collect the Goods subject to complaint carriage paid. In the event of non-collection or late collection of the Goods subject to complaint, the Supplier shall reimburse the Purchaser for storage costs at the Purchaser's reasonable discretion.
Section 5 - Transfer, assignment
- Without the prior written consent of the Purchaser, the Supplier shall not be entitled to transfer the performance owed by it in whole or in part to third parties or to have it performed by third parties (e.g. subcontractors). The Supplier shall bear the procurement risk for its services unless otherwise agreed in individual cases (e.g. limitation to stock). If the Supplier assigns its contractual claims against the Purchaser to a third party without the Purchaser's consent, the assignment shall nevertheless be effective.
The Purchaser may choose whether to make payment to the Supplier or to the third party with discharging effect. Sub-suppliers of the Supplier shall always be named to the Purchaser with their addresses.
- All rights against the Purchaser are only due to the direct Supplier and are not assignable.
Section 6 - Delivery and storage
- Accidental loss. The risk of accidental loss and accidental deterioration of the item shall pass to the Purchaser upon handover at the place of performance. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply accordingly in the event of acceptance.
- Shipping charges. Unless otherwise agreed, shipping and receiving connection fees and other expenses shall be borne by the Supplier. Delivery shall be made "free domicile" within Germany to the place specified in the order. If the place of destination is not specified and nothing else has been agreed, delivery shall be made to the Purchaser's place of business. The respective place of destination shall also be the place of performance for the delivery and any subsequent performance (obligation to deliver).
- Delivery. The Supplier or his representative shall have the correct receipt of all deliveries certified by the place of receipt. Delivery to a receiving point other than the one designated by the Purchaser shall not result in a transfer of risk for the Supplier even if this point accepts the delivery. The Supplier shall bear any additional costs incurred by the Purchaser as a result of delivery to a receiving point other than the agreed receiving point.
- Delivery note. The delivery must be accompanied by a delivery note stating the date (issue and dispatch), the content of the delivery (article number and quantity) and the Purchaser's order ID (date and number). If the delivery note is missing or incomplete, the Purchaser shall not be responsible for any delays in processing and payment resulting therefrom. A corresponding dispatch note with the same content shall be sent to the Purchaser separately from the delivery note.
- Weighing. If weighing is required, the weight determined on the Purchaser's calibrated scales shall be decisive.
- Marking. Insofar as the Supplier is entitled to a return of the packaging necessary for the delivery on the basis of the order, the entire delivery documents shall be marked with a clear indication. In the absence of such marking, the packaging shall be disposed of at the Purchaser's premises at the Supplier's expense; in this case, the Supplier's claim to the return of the packaging shall lapse.
- Storage. If items required for the performance of services are stored on the Purchaser's premises, this shall be done at storage locations to be requested by the Supplier from the Purchaser. The Supplier shall bear the risk for such items until the transfer of risk.
- Acceptance. Acceptance of Goods at the Purchaser's premises shall not constitute acceptance and shall not give rise to an assumption that the Goods are in conformity with the contract. The Purchaser reserves the right to inspect the Goods and packaging for contractual condition, numerical and quantitative correctness, etc. The Purchaser shall not be liable for any damages resulting from such inspection.
- Default of acceptance. The statutory provisions shall apply to the occurrence of default in acceptance on the part of the Purchaser. However, the Supplier must also expressly offer its performance to the Purchaser if a specific or determinable calendar time has been agreed for an action or cooperation of the Purchaser (e.g. provision of material). If the Purchaser is in default of acceptance, the Supplier may claim compensation for its additional expenses in accordance with the statutory provisions (§ 304 BGB). If the contract relates to a non-representable item to be manufactured by the Supplier (individual production), the Supplier shall only be entitled to further rights if the Purchaser undertakes to cooperate and is responsible for the failure to cooperate.
Section 7 - Executionat the purchaser's premises
Persons who carry out work within the Purchaser's business in fulfilment of the performance of the service shall be subject to the Purchaser's business regulations. To the extent permitted by law, the Purchaser excludes any liability for such persons.
Section 8 - Samplesand drawings
Items provided by the buyer to the performance provider free of charge remain the property of the buyer and shall be used only according to their intended purpose. If such items are processed the buyer will be deemed to be their manufacturer. If products are manufactured by the use of parts provided by the buyer, the buyer will become proportionate co-owner of said products.
Section 9 - Deployments
- Provision. The above provision in Clause 8 shall apply mutatis mutandis to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items which the Purchaser provides to the Supplier for production. Items provided by the Purchaser to the Supplier free of charge shall remain the property of the Purchaser and may only be used for the intended purpose. Such items shall - as long as they are not processed - be stored separately at the Supplier's expense and insured to a reasonable extent against destruction and loss.
- Further processing. Any processing, mixing or combination (further processing) of provided items by the Supplier shall be carried out for the Purchaser. The same shall apply in the event of further processing of the Goods supplied by the Purchaser, so that the Purchaser shall be deemed to be the manufacturer and shall acquire ownership of the product at the latest upon further processing in accordance with the statutory provisions. If products are manufactured using parts of the Purchaser, the Purchaser shall become co-owner of the products on a pro rata basis.
Section 10 - Supplier-products
Products manufactured by the Supplier according to documents designed by the Purchaser or (also) with tools provided by the Purchaser may not be used by the Supplier except for the Purchaser.
Section 11 - Prices,sales tax, packaging and freight charges
- Price fixing. The agreed prices are binding. Unless otherwise stated, the Supplier shall be bound by the prices contained in its offers for 30 days from the date of the offer. All prices are inclusive of statutory value added tax if this is not shown separately.
- Ancillary services. Unless otherwise agreed in individual cases, the price includes all services and ancillary services of the Supplier (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance). In the case of deliveries with freight reimbursement, freight charges, customs duties, etc. shall be submitted by the Supplier.
- No price adjustment. If, for example, wage and salary rates, prices for taxes, customs duties, freight, fees or other charges are increased or newly introduced between the conclusion and fulfilment of the contract, or if prices are increased due to a change in the currency parity, the Supplier shall not be entitled to adjust the price for this reason.
- Customs and import regulations. Foreign customs and import regulations shall be taken into account by the Supplier to the best of his knowledge.
Section 12 - Payment and late payment
- Invoices. The Supplier shall submit invoices in duplicate, including the documents required for verification, to the Purchaser - separately from other consignments.
- Early performance. Performance before agreed dates or before the expiry of agreed deadlines shall not affect the due date for payment; it shall also entitle the customer to reject performance.
- Due date for payment. The agreed price is due for payment within 60 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If the Purchaser makes payment within 14 calendar days, the Supplier shall grant the Purchaser a 3% discount on the net amount of the invoice.
- Place of payment. The place of payment shall be the place of receipt designated by the Purchaser.
- Complete documents. Invoices will only be settled when the documents belonging to the scope of services (documents, test certificates, etc.) have been received in full by the Purchaser.
- Set-off. The Purchaser shall be entitled to set off against the Supplier's claims against the Purchaser all claims to which the Purchaser is entitled against the Supplier. The Purchaser shall be entitled to rights of set-off and retention as well as the defense of non-performance of the contract to the extent provided by law. In particular, the Purchaser shall be entitled to withhold due payments as long as it still has claims against the Supplier arising from incomplete or defective performance.
- Default in payment. The Purchaser shall not owe any interest on arrears. The statutory provisions shall apply to default in payment.
- Rights of the Supplier. The Supplier shall only have a right of set-off or retention on the basis of counterclaims that have been legally established or are undisputed.
Section 13 - Retention of title
The transfer of ownership of the Goods to the Purchaser shall be unconditional and without regard to the payment of the price. If, however, the Purchaser accepts in an individual case an offer of the Supplier to transfer title conditional upon payment of the purchase price, the Supplier's retention of title shall expire at the latest upon payment of the purchase price for the Goods delivered. The Purchaser shall remain entitled to resell the Goods in the ordinary course of business even before payment of the purchase price, assigning the resulting claim in advance (alternatively, the simple reservation of title extended to the resale shall apply). This excludes all other forms of retention of title, in particular the extended retention of title, the passed-on retention of title and the retention of title extended to further processing.
Section 14 - Warranty for the condition
- Defects of quality and title. The statutory provisions shall apply to the Purchaser's rights in the event of material defects and defects of title of the Goods (including wrong delivery and short delivery as well as improper assembly, defective assembly, operating or operating instructions) and in the event of other breaches of duty by the Supplier, unless otherwise stipulated below.
- Agreed quality. In accordance with the statutory provisions, the Supplier shall be liable in particular for ensuring that the Goods have the agreed quality when the risk passes to the Purchaser. In any case, those product descriptions which - in particular by designation or reference in the Purchaser's order - are the subject matter of the respective contract or have been included in the contract in the same way as these GPC shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from the Purchaser, the Supplier or the manufacturer. In case of doubt, all notes and confirmations of the Supplier are to be regarded as guaranteed product descriptions and warranties as to quality. In particular, statements and descriptions contained in advertising material, manuals and/or price lists shall constitute an agreement of a certain quality. The same applies to all drawings, illustrations, dimensions, weights or other performance data of the Supplier.
- Duty to examine. The Purchaser is not obliged to examine the Goods or to make special inquiries about any defects upon conclusion of the contract. In partial deviation from Section 442 (1) sentence 2 BGB, the Purchaser shall therefore also be entitled without restriction to claims for defects if the Purchaser remained unaware of the defect at the time of conclusion of the contract due to gross negligence.
- Duty to give notice of defects. The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial duty to inspect and give notice of defects with the following proviso: The Purchaser's duty to inspect shall be limited to defects which become apparent during the Purchaser's incoming Goods inspection under external examination including the delivery documents (e.g. transport damage, wrong delivery and short delivery) or which are identifiable during the Purchaser's quality control in the random sampling procedure. Insofar as acceptance has been agreed, there shall be no obligation to inspect. In all other respects, it shall depend on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. The Purchaser's obligation to give notice of defects discovered later shall remain unaffected. Notwithstanding the Purchaser's duty to examine, the Purchaser's complaint (notice of defect) shall be deemed to have been made without undue delay and in good time if it is sent within seven working days of discovery or, in the case of obvious defects, of delivery.
- Subsequent performance. Subsequent performance shall also include the removal of the defective Goods and their re-installation, provided that the Goods have been installed in another item or attached to another item in accordance with their type and intended use; the Purchaser's statutory claim to reimbursement of corresponding expenses shall remain unaffected. The Supplier shall bear the expenses necessary for the purpose of inspection and subsequent performance even if it turns out that there was actually no defect. The Purchaser's liability for damages in the event of an unjustified request to remedy a defect shall remain unaffected; in this respect, however, the Purchaser shall only be liable if it recognized or was grossly negligent in not recognizing that there was no defect.
- Choice of the Purchaser. Without prejudice to the statutory rights of the Purchaser and the provisions in Clause 14.5, the following shall apply: If the Supplier fails to fulfil its obligation of subsequent performance - at the Purchaser's option by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery) - within a reasonable period of time set by the Purchaser, the Purchaser may remedy the defect itself and demand reimbursement from the Supplier of the expenses required for this purpose or a corresponding advance payment. If subsequent performance by the Supplier has failed or is unreasonable for the Purchaser (e.g. due to particular urgency, risk to operational safety or imminent occurrence of disproportionate damage), no deadline need be set; the Purchaser shall inform the Supplier of such circumstances without undue delay, if possible in advance.
- Other rights in case of defects. In the event of a material defect or defect of title, the Purchaser shall otherwise be entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provisions. In addition, the Purchaser shall be entitled to claim damages and reimbursement of expenses in accordance with the statutory provisions.
- Period. The Supplier's warranty shall extend to at least two years, unless a longer warranty or guarantee period has been agreed. If acceptance has been agreed, the period shall begin with this. The period shall be extended by the time during which the manufactured and/or delivered Goods have caused total or partial operational downtime at the Purchaser due to defects or their elimination. The period shall start anew for repaired and replaced parts.
- Infringements of industrial property rights. Irrespective of the above provisions, the Supplier shall also be liable for claims arising from the infringement of property rights in the event of contractual use of its performance and shall indemnify the Purchaser and its customers against all claims arising from the use of such property rights.
- Technical changes. The Supplier is not authorized to make technical changes or changes in shape, color and/or weight without the prior written consent of the Purchaser, unless this means an adaptation to the state of the art. In the latter case, the Purchaser must always be informed in detail without delay. The Purchaser shall not be bound by any product improvement carried out in this way.
- Extension possibilities. Information in the manual, documentation and/or advertising materials that refer to expansion possibilities of a product or to available accessories are also binding for the Supplier.
- Creditworthiness. If the Purchaser becomes aware of circumstances which call into question the creditworthiness of the Supplier, in particular if the Supplier ceases payment or work, or if the Purchaser becomes aware of similar circumstances, the Purchaser shall also be entitled for this reason to withdraw from the contract and to demand immediate payment of the entire remaining debt. In this case, the Purchaser shall also be entitled to demand warranty bonds. The Purchaser may also withdraw from any prolongation commitment after setting a deadline.
Section 15 - Supplier recourse
- The Purchaser shall be entitled to the statutory rights of recourse within a supply chain (supplier recourse pursuant to §§ 445a, 445b, 478 BGB) without restriction in addition to the claims for defects. In particular, the Purchaser shall be entitled to demand exactly the type of subsequent performance (repair or replacement) from the Supplier which the Purchaser owes to its customer in the individual case. The statutory right of choice (§ 439 para. 1 BGB) of the Purchaser shall not be restricted hereby.
- Claims for defects. Before the Purchaser acknowledges or fulfils a claim for defects asserted by its customer (including reimbursement of expenses pursuant to Sections 445a (1), 439 (2) and (3) BGB, the Purchaser shall notify the Supplier and request a written statement, briefly setting out the facts of the case. If a substantiated statement is not made within a reasonable period of time and if no amicable solution is reached, the claim for defects actually granted by the Purchaser shall be deemed to be owed to its customer. In this case, the Supplier shall have the burden of proof to the contrary.
- The Purchaser's claims arising from Supplier recourse shall also apply if the defective Goods have been further processed by the Purchaser or another entrepreneur, e.g. by incorporation into another product.
Section 16 - Producer liability
- Product damage. If the Supplier is responsible for product damage, it shall indemnify the Purchaser against third-party claims to the extent that the cause lies within its sphere of control and organization and it is itself liable in relation to third parties.
- Reimbursement of expenses, recall. Within the scope of its indemnification obligation, the Supplier shall reimburse expenses pursuant to Sections 683, 670 BGB arising from or in connection with a claim by third parties including recall actions carried out by the Purchaser. The Purchaser shall inform the Supplier about the content and scope of recall measures - to the extent possible and reasonable - and give the Supplier the opportunity to comment. Further legal claims remain unaffected.
- Product liability insurance. The Supplier shall take out and maintain product liability insurance with a lump sum coverage of at least EUR 5 million per personal injury/property damage.
Section 17 - Insolvencyof the supplier
- Insolvency proceedings. The Purchaser shall also be entitled to rescind the contract if insolvency proceedings are applied for against the Supplier's assets or if the Supplier suspends payments. The Purchaser shall have the right to take over material and/or semi-finished products including any special operating resources on reasonable terms. Further claims of the Supplier are excluded.
- Release from acceptance obligation. In the event of force majeure, such as labor disputes, operational disruptions, etc., the Purchaser shall be released from its obligation to accept and take delivery.
Section 18 - Liability
Statutory provisions. The Supplier shall be liable to the Purchaser in accordance with the statutory provisions.
Section 19 - Limitation
- Statute of Limitations. The mutual claims ofthe contracting parties shall become statute-barred in accordance with thestatutory provisions, unless otherwise stipulated in Clauses 19.2 and 19.3 below.
- General limitation period. In deviationfrom § 438 para. 1 no. 3 BGB, the general limitation period for claims fordefects shall be three years from the transfer of risk. Insofar as acceptancehas been agreed, the limitation period shall commence upon acceptance. The three-yearlimitation period shall apply mutatis mutandis to claims arising from defectsof title, whereby the statutory limitation period for claims in rem of thirdparties for surrender of goods (§ 438 para. 1 no. 1 BGB) shall remainunaffected; in addition, claims arising from defects of title shall in no casebecome time-barred as long as the holder of the right - in particular in theabsence of a limitation period - can still assert the right against thePurchaser.
- Non-contractual claims for damages. The limitationperiods of the law on sales including the above extension shall apply - to thestatutory extent - to all contractual claims for defects. Insofar as the Purchaseris also entitled to non-contractual claims for damages due to a defect, theregular statutory limitation period shall apply (§§ 195, 199 BGB), unless theapplication of the limitation periods of the law on sales leads to a longer limitation period in individual cases.
Section 20 - Applicable law, place of performance, place of jurisdiction, severability clause
- Headings. Headings in these GTP are for convenience only and shall have no significance for the interpretation of these GTP.
- Deviations. Deviations from these GTC shall only be effective if the Purchaser confirms them in writing.
- Applicable law. The law of the Federal Republic of Germany shall apply to these GPC and the entire legal relationship between the Supplier and the Purchaser, including all contracts concluded with the inclusion of these GPC, to the exclusion of unified law, in particular the UN Convention on Contracts for the International Sale of Goods.
- Place of performance. The place of performance for all obligations arising from the contractual relationship is the registered office of the Purchaser, Alte Grenze 1, 19246 Valluhn Businesspark A24.
- Place of Jurisdiction. The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship - insofar as it has been concluded with merchants - also insofar as they relate to the conclusion of the contract is, insofar as permissible, Schwerin, Germany.
- Ineffectiveness. Should a provision in these GTC or a provision within the scope of other agreements be or become invalid, this shall not affect the validity of any other provision or agreement. The ineffective clause shall be replaced by the one that comes closest to the economic purpose intended by the affected clause.
Status: April 2021