Terms of Business (AGBs)
General Sales Conditions
§ 1 Scope of Validity, Form
(1) The General Sales Conditions on hand (GSC / AVB = Allgemeine Verkaufsbedingungen) shall be valid for all of our business relations with our customers (“buyers”). The GSC shall only be valid when the buyer is an entrepreneur in the meaning of § 14 BGB (= Civil Code).
(2) The GSC shall be valid for contracts about the sale and / or the delivery of movable objects (“goods”). As far as nothing else has been agreed on the GSC shall be valid in the form valid at the time of the order of the buyer respectively at least in the last version submitted to him in the text form without the obligation for us to point to it in any individual case.
(3) Our GSC shall exclusively be valid. Deviating, conflicting, or supplementary GSC of the buyer shall only then and in so far be part of the contract when we explicitly have accepted their validity.
(4) Individual agreements made in the individual case with the buyer shall prevail over these GSC in any case.
§ 2 Conclusion of the Contract, Collection and Pattern Material
(1) Our offers are without engagement and without obligation. This shall also be valid should we have delivered catalogues, other product descriptions or documents – also in electronic form. Collection and pattern materials shall be invoiced separately. Collection and pattern material put at disposal to the buyer free of charge shall remain our property. Pattern material can show minor discrepancies production and material-related.
(2) The order of the goods by the buyer shall be considered as a binding offer of contract. The acceptance can be declared either in the written form (acceptance of order) or by means of the delivery of the goods to the buyer.
§ 3 Term of Delivery and Delay in Delivery
(1) The term of delivery shall be individually agreed on respectively will be indicated by us when accepting the order.
(2) As far as we cannot keep to binding terms of delivery for reasons we will not have to represent, so we will inform the buyer immediately about this matter and at the same time we will inform about the expected new term of delivery. Should the performance also not be available within the new term of delivery so we shall be entitled to resign from the contract totally or partially; should a consideration of the buyer already have been made, we will refund this immediately.
(3) In a case of circumstances beyond our control, which will have effect on the fulfillment of the contract we shall be entitled to postpone the delivery for the duration of the obstruction and in case of long term delays we shall be entitled to resign totally or partially, and it shall not be possible to deduce any claims against us from t. Possible legal claims of the buyer shall be unaffected.
(4) The occurrence of our delay in delivery shall also be determined according to the legal provisions. In any case, however, a reminder by the buyer shall be required. The rights of the buyer according to § 8 of these GSC and our legal rights shall be unaffected.
§ 4 Delivery, Place of Fulfillment, Passing of Risk, Acceptance, Default of Acceptance
(1) The delivery will be executed ex stock with registered office in Kulmbach / Germany or the location of the production or of the storage. The place of fulfillment for the delivery and a possible supplementary performance shall be our registered office in Kulmbach / Germany. As far as nothing else has been agreed on we shall be entitled to determine by ourselves the way of shipment (especially the forwarding agent, dispatch, packaging). The delivery shall be executed to the delivery address as indicated by the buyer as far as nothing else has been agreed on.
(2) We shall be entitled to partial delivery as far as this is acceptable for the buyer. In case of admissible partial deliveries we shall be entitled to issue invoices for partial delivery.
(3) The risk of an accidental loss or the incidental deterioration of the goods shall be passed over to the buyer latest with the delivery, the risk shall already be passed over with the delivery to the forwarding agent for a sale by delivery to a place other than the place of performance, the carrier, or to any third party determined to execute the shipment.
(4) In case of special production, tailor-made or custom-made products, e.g. according to customer’s request, or special colors, the buyer shall be obliged to accept the goods unless he is entitled to refusal of acceptance for other legal reasons.
(5) Should the buyer come into default of acceptance we especially shall be entitled to claim compensation for the damages resulting from this including additional expenses (e.g. storage costs).
§ 5 Prices and Terms of Payment
(1) As far as nothing else has been agreed on our current prices valid on the respective time of the conclusion of contract shall be valid, in fact ex works plus statutory VAT plus arising customs duties. We charge a low-quantity surcharge of EUR 5.00 for a net order value of up to EUR 50.00.
(2) The buyer shall bear the shipment costs depending on the order value according to the price list and the costs for transport insurance, should this be requested by the buyer, as well as for possible customs duties, charges, taxes, and other public charges for a sale by delivery to a place other than the place of performance.
(3) The purchasing price shall be due and payable within 30 days of invoicing and delivery respectively of acceptance of the goods. We shall, however, be entitled to execute a delivery totally or partially only against payment in advance also within the scope of a current business relation. The deduction of a cash discount shall only be allowed with a special agreement in the written form. The buyer shall be in default with the expiry of the above mentioned term of payment. In this case we shall be entitled to charge the refund of the collection expenses in an appropriate amount of the buyer. Our claim for the commercial maturity interest of currently 9 percentage points above the base interest shall be unaffected.
(4) Should the seller have allowed the buyer to pay an open claim in installments so this agreement shall be invalid, should the buyer come in default with an installment for more than 10 banking days. The remaining residual claim then shall immediately be due for payment in one amount.
(5) The buyer shall only be entitled to set-off rights and rights of retention in so far as his claim has been determined as legally binding or if it is undisputed. The reciprocal rights of the buyer especially according to § 7 par. 6 sentence 2 of these GSC shall be unaffected in case of defective delivery.
(6) Should after conclusion of the contract be recognizable, that our claim for the purchasing price could be at risk because of lacking capacity of the buyer (e. g. by means of an application for the opening of insolvency proceedings), so we shall be entitled to withhold performance according to the legal provisions and – where applicable after deadline - to withdraw from the contract. We immediately can withdraw from the contract with contracts for special production, tailor-made or custom-made products; the legal provisions about the dispensability of setting a deadline shall be unaffected.3
§ 6 Reservation of Proprietary Rights
(1) We reserve the proprietary rights for sold goods (reserved goods) up to the complete payment of our current and future claims out of the purchase contract and a current business relation. The reserved goods may neither be impawned to third parties nor be re-assigned as a security up to the complete payment.
(2) We shall be entitled to resign from the contract and / or to claim the goods because of the reservation of proprietary rights with behavior contrary to the contract of the buyer, should we have before set unsuccessfully an appropriate deadline for the payment or should such a setting of a deadline be dispensable according to the legal provisions. We shall be allowed to use the reserved goods.
(3) The buyer shall be entitled to sell and / or process the reserved goods. Our reservation of proprietary rights shall then extend to the developing product. Should the property right of third parties persist with a processing of their goods so we shall acquire a co-ownership in the relation of the value of the reserved goods. The buyer shall assign the claims against third parties arising of the selling-on of the goods respectively of the product right now to us totally respectively in the amount of our co-ownership share as security. The buyer may not collect for us the claims assigned to us for his own account on his own behalf as long as we will not revoke this authorization. Our right to collect these claims ourselves shall be unaffected. As long as the buyer, however, behaves contrary to contract, especially is in default of payment, we can request that the buyer informs us about the assigned claims and the respective debtors, informs the respective debtors about the assignment and hands over all required information, which we will need for the enforcement of the claims.
(4) Should the realizable value of the securities exceed our claims by more than 10% so we will release securities according to our choice on request of the buyer.
§ 7 Deficiency Claims of the Buyer
(1) The legal provisions shall be valid for the rights of the buyer for material defects and legal deficiencies as far as in the following nothing else has been determined. The legal special provisions for a supplier regress shall be unaffected for a final delivery of the goods to a consumer, also should he have processed them. Claims from supplier regress shall be excluded should the defective goods have been processed by the buyer or another contractor.
(2) Basis of our liability for defects shall be above all the agreement made about the quality of the goods, which is subject of the individual contract or has been made public by us at the time of the conclusion of the contract (especially in catalogues or on our internet homepage). Shadings, minor, technically not avoidable deviations in quality, width, weight, gear or patterns shall not constitute a deviation of the agreed quality. Acceptable deviations or deviations caused by development of the article in quality, color, width, weight, gear or patterns shall also not constitute a defect. We will assume any liability for public statements of third parties to which the buyer has pointed as for him crucial for the purchase decision.
(3) We shall basically be not liable for defects which the buyer has known at the time of concluding the contract or which he grossly negligent does not know. Furthermore the deficiency claims of the buyer shall require that he has fulfilled the legal obligations of inspection and notification of defects. An inspection directly before the processing shall have to take place before the processing of textiles and other goods specified for installation or any other processing. Should a defect appear so we shall be informed immediately in the written form, whereat evident defects shall have to be indicated in the written form within 3 work days from delivery and defects which not can be recognized at the inspection shall be indicated to us within the same deadline from the discovery of them. Should the buyer fail the proper inspection and / or the notification of defects our liability according to the legal provisions shall be excluded.
(4) Should the delivered goods be defective so we can choice if we want to perform a supplementary performance by means of a removal of defects (rectification of defects) or by delivery of goods free from defects (replacement delivery). Our right to refuse the supplementary performance according to the legal provisions shall be unaffected. We shall be entitled to make the supplementary performance dependent on the payment of the purchase price by the buyer. The buyer, however, shall be entitled to withhold an appropriate part of the purchase price in a relation to the defect.
(5) The buyer must give us the required time for the owed supplementary performance, especially he has to hand over the complained goods for inspection purposes. In case of a replacement delivery the buyer has to return the defective goods according to the legal provisions. The supplementary performance shall neither include the removal nor the new installation of the defective goods, if we originally were not obliged to the installation.
(6) The expenses required for the purpose of inspection and supplementary performance, especially transport and labor costs as well as possible removal and installation costs shall be borne respectively refunded by us according to the legal provisions, should there really be a defect. Otherwise we shall be entitled to request of the buyer to refund the costs accrued from the unjustified request for removal of defects, unless the lacking defect was not recognizable for the buyer.
(7) The buyer shall be entitled in urgent cases to remove the defect by himself and to request compensation for the hereto objectively required expenses. We shall immediately be informed, if possible in advance, about such a self remedy. The right of self remedy shall not apply should we be entitled to refuse an according supplementary performance according to the legal provisions.
(8) Should the supplementary performance have failed or should an appropriate deadline to be set by the buyer have expired unsuccessfully or should this have been unnecessary according to the legal provisions, the buyer shall be entitled to withdraw from the contract or reduce the purchase price. There shall be no right of withdrawal for an insignificant deficiency. As well there shall be no right of withdrawal for special production, tailor-made, and custom-made products, e. g. products manufactured according to customer request or special colors.
(9) Claims for compensation respectively replacement of expenses without effect of the buyer shall also exist for deficiencies only according to § 8 and shall be apart from that excluded.
§ 8 Other Liability
(1) We shall be liable for a violation of contractual and non-contractual duties according to the legal provisions, as far as from these .general sales conditions including the following provisions nothing else will result
(2) Wes shall be liable for compensation – no matter because of which legal ground – within the scope of fault-based liability in case of intent and gross negligence. We shall only be liable in case of simple negligence, subject to legal limitations of liability (e.g. diligence in own matters, insignificant breach of duty)
(a) for damages resulting from the violation of life, body or health;
(b) for damages resulting from the violation of a substantial contractual obligation (duty, the fulfillment of which makes the execution of the contract possible at all and the observance of which the contractual partner regularly relies on and may rely on); in this case our liability shall be limited, however, to typically arising damages.
(3) The limitations of liability resulting of par. 2 shall also be valid for third parties as well as for breaches of duty by people whose fault we have to represent according to legal provisions. They shall not be valid as far as a defect has been fraudulently concealed or a guarantee for the quality of the goods has been furnished according to the Product Liability Act.
(4) The buyer shall only be entitled to withdraw or cancel because of a breach of duty, which does not consist of a defect, if we have to represent the breach of duty. A free right of cancellation of the buyer shall be excluded.
§ 9 Limitation Period
The general limitation period for claims for material defect and deficiency in title shall be one year from the delivery. As far as an acceptance has been agreed on the limitation period shall start with the acceptance. The above mentioned limitation periods of purchase right shall also be valid for contractual and non-contractual damage claims of the buyer, which are based on a defect of the goods, unless the application of the regular legal limitation period would lead to a shorter limitation period in the individual case. Legal special provisions for the limitation period shall be unaffected. Damage claims of the buyer according to § 8 par. 2 sentence 1 and sentence 2 (a) as well according to the Product Liability Act shall fall under the statute of limitations exclusively according to the legal limitation periods.
§ 10 Modifications of General Sales Conditions / Reservation of Right of Modification
We shall be entitled to modify these GSC unilateral, especially if this should be required for the adaption to changed legal framework conditions. We will inform the buyer about a modification. The modification shall be a contract component, if the buyer does not contradict against the integration into the contractual relation in the written form or in text form within 6 weeks after the receipt of the information about the modification.
§ 11 Choice of Law and Place of Jurisdiction
(1) The law of the Federal Republic of Germany under exclusion of the international uniform law, especially of the UN Sales Law shall be valid for these General Sales Conditions and the contractual relation between us and the buyer.
(2) Should the buyer be a businessman as defined in the German Commercial Code (HGB = Commercial Code) the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly of the contractual relation shall be our registered office in Kulmbach. The according shall be valid, if the buyer is an entrepreneur as defined in § 14 BGB (= Civil Code). Prevailing legal provisions, especially for exclusive competences, shall be unaffected.