Allgemeine Einkaufsbedingungen

§ 1 Geltungsbereich, Form

1) These General Terms and Conditions of Sale (GTCS) apply to all of our business relationships with our customers (“Buyers”). The GTCS apply only if the Buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), a legal entity under public law, or a special fund under public law. Our GTCS apply worldwide.

(2) The GTCS apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”). Unless otherwise agreed, the GTCS in the version valid at the time of the Buyer’s order, or in any case in the version most recently communicated to the Buyer in text form, shall also apply as a framework agreement to future contracts of the same kind, without us having to refer to them again in each individual case.

(3) Our GTCS apply exclusively. Any deviating, conflicting, or supplementary general terms and conditions of the Buyer shall become part of the contract only if and to the extent that we have expressly agreed to their applicability. This requirement for consent shall apply in all cases, for example even if we carry out delivery to the Buyer without reservation while being aware of the Buyer’s general terms and conditions.

(4) Im Einzelfall getroffene, individuelle Vereinbarungen mit dem Käufer (einschließlich Nebenabreden, Ergänzungen und Änderungen) haben in jedem Fall Vorrang vor diesen AVB. Für den Inhalt derartiger Vereinbarungen ist, vorbehaltlich des Gegenbeweises, ein schriftlicher Vertrag bzw. unsere schriftliche Bestätigung maßgebend.

((5) Legally relevant declarations and notices by the Buyer with regard to the contract, such as the setting of deadlines, notification of defects, withdrawal, or reduction of the purchase price, must be submitted in writing, i.e. in written or text form, such as by letter, email, or fax. Statutory formal requirements and further evidence, particularly in cases of doubt regarding the legitimacy of the person making the declaration, shall remain unaffected.

(6) References to the applicability of statutory provisions are for clarification purposes only. Therefore, even without such clarification, the statutory provisions shall apply unless they are directly amended or expressly excluded in these GTCS.

§ 2 Conclusion of Contract

(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogues or other product descriptions or documents, including in electronic form, to which we reserve ownership rights and copyrights.

(2) The Buyer’s order of the Goods shall be deemed a binding contractual offer. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 14 days of receipt by us.

(3) Acceptance may be declared either in writing, for example by order confirmation, or by delivery of the Goods to the Buyer.

§ 3 Delivery Period and Delay in Delivery

(1) The delivery period shall be agreed individually or specified by us upon acceptance of the order. If this is not the case, the delivery period shall be approximately two weeks from conclusion of the contract.

(2) If we are unable to meet binding delivery periods for reasons for which we are not responsible, due to non-availability of the performance, we shall inform the Buyer thereof without delay and, at the same time, notify the Buyer of the expected new delivery period. If the performance is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; any consideration already provided by the Buyer shall be refunded without delay. A case of non-availability of the performance within the meaning of this provision shall include, in particular, the failure of our supplier to deliver to us on time, provided that we have concluded a congruent covering transaction, neither we nor our supplier are at fault, or we are not obliged to procure the goods in the individual case.

(3) The occurrence of delay in delivery on our part shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the Buyer shall be required. If we are in delay with delivery, the Buyer may claim lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price, meaning the delivery value, for each completed calendar week of delay, but in total no more than 5% of the delivery value of the Goods delivered late. We reserve the right to prove that the Buyer has suffered no damage at all or only substantially less damage than the above lump sum.

(4) The Buyer’s rights pursuant to Section 9 of these GTCS and our statutory rights, in particular in the event of exclusion of the obligation to perform, for example due to impossibility or unreasonableness of performance and/or subsequent performance, shall remain unaffected.

§ 4 Delivery, Passing of Risk, Acceptance, Default of Acceptance

(1) Delivery shall be made ex warehouse, which shall also be the place of performance for the delivery and any subsequent performance. At the Buyer’s request and expense, the Goods shall be shipped to another destination, in which case this shall constitute a sale by delivery to a place other than the place of performance. Unless otherwise agreed, we shall be entitled to determine the type of shipment ourselves, in particular the transport company, shipping route, and packaging.

(2) The risk of accidental loss and accidental deterioration of the Goods shall pass to the Buyer no later than upon handover. In the case of a sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the Goods, as well as the risk of delay, shall pass already upon delivery of the Goods to the forwarding agent, carrier, or other person or institution designated to carry out the shipment. Handover shall be deemed equivalent if the Buyer is in default of acceptance.

(3) If the Buyer is in default of acceptance, fails to perform an act of cooperation, or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to claim compensation for the resulting damage, including additional expenses, such as storage costs. For this purpose, we shall charge lump-sum compensation of 0.25% of the net price, meaning the delivery value of the Goods, for each calendar day of delay, but in total no more than 5% of the delivery value, or 10% in the event of final refusal of acceptance, beginning with the delivery period or, in the absence of a delivery period, with notification that the Goods are ready for dispatch.

(4) Proof of greater damage and our statutory claims, in particular reimbursement of additional expenses, reasonable compensation, and termination, shall remain unaffected; however, the lump sum shall be offset against any further monetary claims. The Buyer shall be entitled to prove that we have suffered no damage at all or only substantially less damage than the above lump sum.

§ 5 Prices and Payment Terms

(1) Unless otherwise agreed in the individual case, our prices applicable at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value-added tax where this is to be shown.

(2) In the case of a sale by delivery to a place other than the place of performance, as defined in Section 4(1), the Buyer shall bear the transport costs actually incurred from the warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes, and other public charges shall be borne by the Buyer.

(3) The purchase price shall become due and payable upon receipt of the invoice and delivery of the Goods. However, including within the scope of an ongoing business relationship, we shall be entitled at any time to make a delivery, in whole or in part, only against advance payment. We shall declare any such reservation no later than with the order confirmation.

(4) Upon expiry of the above payment period, the Buyer shall be in default. During the period of default, interest shall accrue on the purchase price at the applicable statutory default interest rate. We reserve the right to assert further damages caused by default. With respect to merchants, our claim to commercial maturity interest pursuant to Section 353 of the German Commercial Code (HGB) shall remain unaffected.

(5) The Buyer shall be entitled to rights of set-off or retention only to the extent that the Buyer’s claim has been finally and legally established or is undisputed. The Buyer’s counter-rights shall remain unaffected, in particular pursuant to Section 7(6), sentence 2 of these GTCS.

(6) If, after conclusion of the contract, it becomes apparent, for example through an application for the opening of insolvency proceedings, that our claim to the purchase price is endangered due to the Buyer’s lack of ability to perform, we shall be entitled, in accordance with the statutory provisions, to refuse performance and, where applicable after setting a deadline, to withdraw from the contract pursuant to Section 321 of the German Civil Code (BGB); the statutory provisions regarding the dispensability of setting a deadline shall remain unaffected.

§ 6 Retention of Title

(1) We retain title to the Goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship, referred to as secured claims.

(2) The Goods subject to retention of title may neither be pledged to third parties nor transferred by way of security before full payment of the secured claims. The Buyer shall notify us in writing without delay if an application for the opening of insolvency proceedings is filed or if third parties access the Goods belonging to us, for example by way of seizure or attachment.

(3) In the event of conduct by the Buyer in breach of contract, in particular in the event of non-payment of the due purchase price, we shall be entitled, in accordance with the statutory provisions, to withdraw from the contract and/or demand the return of the Goods on the basis of the retention of title. The demand for return shall not at the same time constitute a declaration of withdrawal; rather, we shall be entitled merely to demand the return of the Goods and reserve the right to withdraw from the contract. If the Buyer does not pay the due purchase price, we may assert these rights only if we have previously set the Buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable under the statutory provisions.

(4) The Customer shall be obliged to treat the purchased item with due care; in particular, the Customer shall be obliged to insure it, at the Customer’s own expense, sufficiently at replacement value against damage caused by fire, water, and theft. If maintenance and inspection work is required, the Customer shall carry this out in good time at the Customer’s own expense.

(5) Until revoked in accordance with subsection (c) below, the Buyer shall be entitled to resell and/or process the Goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.

a) The Buyer hereby assigns to us, as security, all claims arising against third parties from the resale of the Goods or the product, either in full or in the amount of our co-ownership share, if any, in accordance with the preceding paragraph. We accept this assignment. The Buyer’s obligations referred to in paragraph 2 shall also apply with regard to the assigned claims.

b) The Buyer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer meets its payment obligations towards us, there is no deficiency in the Buyer’s ability to perform, and we do not assert the retention of title by exercising a right pursuant to paragraph 3. If this is the case, however, we may require the Buyer to disclose to us the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and notify the debtors, meaning third parties, of the assignment. In addition, in this case we shall be entitled to revoke the Buyer’s authorization to further resell and process the Goods subject to retention of title.

c) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Buyer’s request.

§ 7 Buyer’s Claims for Defects

(1) The statutory provisions shall apply to the Buyer’s rights in the event of material defects and defects of title, including incorrect delivery and short delivery, unless otherwise provided below. In all cases, the statutory special provisions applicable to the final delivery of unprocessed Goods to a consumer shall remain unaffected, even if the consumer has further processed them, supplier recourse pursuant to Section 478 of the German Civil Code (BGB).
Claims arising from supplier recourse shall be excluded if the defective Goods have been further processed by the Buyer or another entrepreneur, for example by incorporation into another product.

(2) The basis of our liability for defects is, above all, the agreement made regarding the quality of the Goods. All product descriptions and manufacturer’s specifications that are the subject of the individual contract or that were publicly announced by us, in particular in catalogues or on our website, at the time of conclusion of the contract shall be deemed to constitute an agreement regarding the quality of the Goods.

(3) If the quality has not been agreed, whether or not a defect exists shall be assessed in accordance with the statutory provisions pursuant to Section 434(1), sentences 2 and 3 of the German Civil Code (BGB). However, we shall assume no liability for public statements made by the manufacturer or other third parties, such as advertising claims, to which the Buyer has not drawn our attention as being decisive for the Buyer’s purchase decision.

(4) As a general rule, we shall not be liable for defects of which the Buyer is aware at the time of conclusion of the contract or of which the Buyer is unaware due to gross negligence pursuant to Section 442 of the German Civil Code (BGB). Furthermore, the Buyer’s claims for defects require that the Buyer has complied with the statutory duties of inspection and notification of defects pursuant to Sections 377 and 381 of the German Commercial Code (HGB). In the case of Goods intended for installation or other further processing, an inspection must in all cases be carried out immediately before processing. If a defect becomes apparent upon delivery, during inspection, or at any later time, we must be notified thereof in writing without delay. In all cases, obvious defects must be notified in writing within five working days from delivery, and defects not discoverable during inspection must be notified in writing within the same period from discovery. If the Buyer fails to carry out the proper inspection and/or to give proper notice of defects, our liability for the defect not notified, or not notified in due time or not properly notified, shall be excluded in accordance with the statutory provisions.

(5) If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect, meaning repair, or by delivering an item free from defects, meaning replacement delivery. Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.

(6) We shall be entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.

(7) The Buyer shall give us the time and opportunity necessary for the subsequent performance owed, in particular by handing over the complained-about Goods for inspection purposes. In the event of replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions.

(8) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor, and material costs, in accordance with the statutory provisions, provided that a defect actually exists. Otherwise, we may demand reimbursement from the Buyer of the costs incurred as a result of the unjustified request for defect remedy, in particular inspection and transport costs, unless the absence of a defect was not recognizable to the Buyer.

(9) If subsequent performance has failed, or if a reasonable deadline to be set by the Buyer for subsequent performance has expired without success or is dispensable under the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. However, in the case of an insignificant defect, there shall be no right of withdrawal.

(10) Claims by the Buyer for damages or reimbursement of futile expenses shall, even in the case of defects, exist only in accordance with Section 9 and shall otherwise be excluded.

§ 8 Compliance with Sanctions and Embargo Regulations

(1) The Buyer is not permitted to sell, deliver, transfer, export, or otherwise transfer the Goods, directly or indirectly, for example by exchange or gift, to natural persons or entities or for use in countries or territories if and for as long as economic, trade, and/or financial sanctions or embargoes imposed by the United Nations, the European Union, the United States of America, and/or the Federal Republic of Germany prohibit such sale, delivery, transfer, export, and/or other form of transfer. This shall not apply to the extent that European or German legal provisions provide otherwise.

(2) The Buyer is further not permitted to sell, deliver, transfer, export, or otherwise transfer the Goods, for example by exchange or gift, to a third party that does not undertake to comply with the provision set out in paragraph 1.

(3) A breach of paragraph 1 or 2 shall constitute a material breach of contract and shall entitle us to withdraw from the contract with immediate effect. Claims for damages are expressly reserved. The Buyer shall be liable for all breaches by its contractual and/or business partners, provided that and to the extent that we incur damage as a result of a breach by the Buyer’s contractual and/or business partners of the provision set out in paragraph 1.

§ 9 Other Liability

(1) Unless otherwise provided in these GTCS, including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.

(2) We shall be liable for damages, irrespective of the legal grounds, within the scope of fault-based liability in cases of intent and gross negligence. In cases of simple negligence, we shall be liable, subject to statutory limitations of liability, such as care in one’s own affairs or insignificant breach of duty, only

a) for damages arising from injury to life, body, or health;

b) for damages arising from the breach of a material contractual obligation, meaning an obligation whose fulfilment is essential for the proper performance of the contract and on whose compliance the contractual partner regularly relies and may rely; in this case, however, our liability shall be limited to compensation for the foreseeable damage that typically occurs.

(3) The limitations of liability arising from paragraph 2 shall also apply vis-à-vis third parties and in the event of breaches of duty by persons, including in their favor, whose fault we are responsible for under statutory provisions. They shall not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the Goods has been assumed, nor to claims of the Buyer under the German Product Liability Act.

(4) Due to a breach of duty that does not consist of a defect, the Buyer may withdraw from or terminate the contract only if we are responsible for the breach of duty. In all other respects, the statutory requirements and legal consequences shall apply.

§ 10 Limitation Period

(1) In deviation from Section 438(1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery.

(2) The above limitation periods under sales law shall also apply to the Buyer’s contractual and non-contractual claims for damages that are based on a defect in the Goods, unless the application of the regular statutory limitation period pursuant to Sections 195 and 199 of the German Civil Code (BGB) would result in a shorter limitation period in the individual case. The Buyer’s claims for damages pursuant to Section 9(2), sentence 1 and sentence 2(a), as well as under the German Product Liability Act, shall become time-barred exclusively in accordance with the statutory limitation periods.

§ 11 Choice of Law and Place of Jurisdiction

(1) These GTCS and the contractual relationship between us and the Buyer shall be governed by the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

(2) If the Buyer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law, or a special fund under public law, our registered office in Hamburg, Germany, shall be the exclusive place of jurisdiction, including international jurisdiction, for all disputes arising directly or indirectly from the contractual relationship. The same shall apply if the Buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). However, in all cases, we shall also be entitled to bring legal action at the place of performance for the delivery obligation pursuant to these GTCS or a prior individual agreement, or at the Buyer’s general place of jurisdiction. Overriding statutory provisions, in particular those concerning exclusive jurisdiction, shall remain unaffected.

Last updated: September 2024