General conditions of sale
§ 1 General, scope of application
(1) These General Terms and Conditions of Sale apply to all our business relations with our customers (hereinafter referred to as "Buyer"). The General Terms and Conditions shall only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The GCS apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also referred to as "goods"), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 651 BGB). The General Terms and Conditions of Sale in their respective version shall also apply as a framework agreement to future contracts for the sale and/or delivery of movable goods with the same purchaser, without us having to refer to them again in each individual case.
(3) Our General Terms and Conditions 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 we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the purchaser without reservation in full knowledge of the purchaser's general terms and conditions.
(4) Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these General Terms and Conditions. The content of such agreements shall be governed by a written contract or our written confirmation.
(5) Legally relevant declarations and notifications to be made to us by the purchaser after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing in order to be effective.
(6) References to the validity 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.
§ 2 Conclusion of contract
(1) Our offers are subject to confirmation and non-binding. This shall also apply if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - for which we reserve ownership rights and copyrights.
(2) The order of the goods by the purchaser shall be deemed a binding contractual offer. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 2 weeks of its receipt by us.
(3) Acceptance may be declared either in writing (e.g. 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.
(2) If we are unable to comply with binding delivery periods for reasons for which we are not responsible (non-availability of performance), we shall inform the Buyer thereof without delay and at the same time inform 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 rescind the contract in whole or in part; we shall immediately reimburse any consideration already rendered by the purchaser. The case of non-availability of the service in this sense shall in particular be deemed to be the non-timely self-delivery by our supplier if we have concluded a congruent hedging transaction. Our statutory rights of rescission and termination as well as the statutory provisions governing the performance of the contract in the event of exclusion of the obligation to perform (e.g. impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected. The Buyer's rights of rescission and termination pursuant to § 8 of these GTC shall also remain unaffected.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the purchaser is required.
§ 4 Delivery, passing of risk, acceptance, default of acceptance
(1) Delivery shall be ex warehouse, where the place of performance is. At the request and expense of the Buyer, the goods shall be shipped to another destination (mail order purchase). Unless otherwise agreed, we shall be entitled to determine the type of dispatch (in particular transport company, dispatch route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest when the goods are handed over. In the case of sale by delivery to destination, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the buyer 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. For the rest, the statutory provisions of the law governing contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. Delivery or acceptance shall be deemed to have taken place if the Buyer is in default of acceptance.
(3) If the buyer is in default of acceptance, fails to cooperate or delays our delivery for other reasons for which the buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose we shall charge a lump-sum compensation for each completed calendar week of delay amounting to 0.5% of the net price (delivery value), but not more than a total of 5% of the delivery value of the goods not delivered or delayed, beginning with the delivery period or - in the absence of a delivery period - with the notification that the goods are ready for dispatch.
The proof of a higher damage and our legal claims (in particular reimbursement of additional expenses, appropriate compensation, termination) remain unaffected; however, the lump sum shall be set off against further monetary claims. The Buyer shall be entitled to prove that we have incurred no damage at all or only substantially less damage than the aforementioned lump sum.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value-added tax.
(2) In the case of sale by delivery to destination (§ 4 para 1), the purchaser shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the purchaser. Unless otherwise agreed, we shall invoice the transport costs actually incurred in the individual case. Any customs duties, fees, taxes and other public charges shall be borne by the purchaser. We do not take back transport packaging and all other packaging in accordance with the Packaging Ordinance; they become the property of the purchaser; pallets are excluded.
(3) The purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the goods. For contracts with a delivery value of more than ... EUR, however, we are entitled to demand a down payment of 30% of the purchase price. The down payment is due and payable within 14 days of invoicing.
(4) The buyer shall be in default upon expiry of the above payment period. The purchase price shall be subject to interest at the applicable statutory default interest rate during the period of default. We reserve the right to assert further claims for damages caused by default. Our claim against merchants for commercial interest on arrears (§ 353 HGB) remains unaffected.
(5) The purchaser shall only be entitled to set-off or retention rights to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, § 7 para. 6 shall remain unaffected.
(6) If it becomes apparent after conclusion of the contract that our claim to the purchase price is at risk due to the buyer's lack of ability to pay (e.g. by filing for insolvency proceedings), we shall be entitled in accordance with the statutory provisions to refuse performance and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made items), we may declare rescission immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
§ 6 Reservation of title
(1) Until full payment of all our current and future claims from the purchase contract and an ongoing business relationship (secured claims), we reserve title to the sold goods.
(2) The goods subject to retention of title may neither be pledged to third parties nor transferred by way of security until the secured claims have been paid in full. The purchaser must inform us immediately in writing if and to the extent that third parties access the goods belonging to us.
(3) In the event of breach of contract by the purchaser, in particular non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of retention of title and withdrawal. If the purchaser does not pay the due purchase price, we may only assert these rights if we have unsuccessfully set the purchaser a reasonable deadline for payment beforehand or if such setting of a deadline is superfluous according to the statutory provisions.
(4) 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 retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed the manufacturer. If the ownership rights of third parties remain in force in the case of processing, mixing or combining with goods of third parties, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The Buyer hereby assigns to us by way of security any claims against third parties arising from the resale of the goods or the product in their entirety or in the amount of our possible co-ownership share pursuant to the preceding paragraph. We accept the assignment. The obligations of the buyer stated in paragraph 2 shall also apply in respect of the assigned claims.
(c) The purchaser shall remain authorised alongside us to collect the claim. We undertake not to collect the claim as long as the purchaser meets his payment obligations towards us, is not in default of payment, no application has been made for the opening of insolvency proceedings and there is no other defect in his ability to pay. If this is the case, however, we may demand that the purchaser informs us of the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment.
(d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the buyer's request.
§ 7 Warranty claims of the buyer
(1) The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the statutory special provisions shall remain unaffected upon final delivery of the goods to a consumer (supplier recourse pursuant to §§ 478, 479 BGB).
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. The product descriptions designated as such (including those of the manufacturer), which were provided to the buyer prior to his order or included in the contract in the same way as these General Terms and Conditions, shall be deemed an agreement on the quality of the goods.
(3) Insofar as the quality has not been agreed, it shall be assessed according to the statutory provisions whether a defect exists or not (§ 434 para. 1 sentences 2 and 3 BGB). However, we accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
(4) The Buyer's claims based on defects presuppose that he has fulfilled his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during the inspection or later, we must be notified of this immediately in writing. The notification shall be deemed immediate if it is made within two weeks, whereby the timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to examine and give notice of defects, the purchaser must notify us in writing of obvious defects (including incorrect and short delivery) within two weeks of delivery, whereby here too the timely dispatch of the notification is sufficient to meet the deadline. If the Buyer fails to properly inspect the goods and/or to notify us of any defects, our liability for the defect not notified shall be excluded.
(5) If the delivered item is defective, the Buyer may, at his discretion, first demand that the defect be remedied (subsequent improvement) or that a defect-free item be delivered (replacement delivery). If the buyer does not declare which of the two rights he chooses, we can set him a reasonable deadline. If the purchaser does not make the choice within the period, the right to choose shall pass to us upon expiry of the period.
(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 required for the owed subsequent performance, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions.
(8) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, if a defect actually exists. If, however, a request by the purchaser to remedy a defect turns out to be unjustified, we shall be entitled to demand reimbursement of the resulting costs from the purchaser.
(9) In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the purchaser has the right to remedy the defect himself and to demand compensation from us for the objectively necessary expenses. We must be informed immediately, if possible in advance, of any such self-delivery. The right of self-remedy does not exist if we would be entitled to refuse a corresponding supplementary performance in accordance with the statutory provisions.
(10) If the supplementary performance has failed or a reasonable period to be set by the Buyer for the supplementary performance has expired without success or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
(11) Claims of the buyer for damages or reimbursement of futile expenses exist only in accordance with § 8 and are otherwise excluded.
§ 8 Other liability
(1) Insofar as nothing to the contrary arises from these GCS including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) We shall be liable for damages - for whatever legal reason - in the event of intent and gross negligence. In the case of simple negligence, we shall only be liable for
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of an essential contractual obligation (obligation, the fulfilment of which is essential for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 shall not apply if we have fraudulently concealed a defect or assumed a guarantee for the quality of the goods. The same applies to claims of the buyer according to the Product Liability Act.
(4) Due to a breach of duty which does not consist in a defect, the purchaser may only withdraw or terminate the contract if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.
§ 9 Order-related production facilities
(1) Order-related production equipment such as models, devices and control gauges provided by the purchaser shall be sent to us free of charge. The conformity of the production equipment provided by the purchaser with the contractual specifications or the drawings or samples provided to us shall only be checked by us on the basis of express agreements. Production equipment provided by the Buyer may be modified by Q-Point if this is necessary for technical reasons and does not alter the end product.
(2) The Buyer shall bear the costs for modifications, maintenance and replacement of production devices and models as well as their insurance.
(3) The production facilities and models shall be handled and preserved with care by Q-Point and maintained in accordance with the technological requirements.
§ 10 Statute of Limitations
(1) Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) If, however, the goods are a building or an object which has been used for a building in accordance with its usual use and has caused its defectiveness (building material), the period of limitation shall be 5 years from delivery in accordance with the statutory regulation (§ 438 Para. 1 No. 2 BGB). Also unaffected shall be special statutory provisions for claims in rem for surrender by third parties (§ 438 para. 1 no. 1 BGB), for fraudulent intent on the part of the seller (§ 438 para. 3 BGB) and for claims in recourse against the supplier for final delivery to a consumer (§ 479 BGB).
(3) The aforementioned limitation periods of the sales law also apply to contractual and non-contractual claims for damages of the buyer which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act shall remain unaffected in any case. Otherwise, the statutory limitation periods shall apply exclusively to the Buyer's claims for damages pursuant to § 8.
§ 11 Property rights
(1) For performances on the basis of article drawings of the buyer, the latter shall be liable for the freedom from rights of third parties.
(2) Drafts and construction proposals of the seller may be passed on only with approval.
(3) A reference to the existing customer relationship, in particular in the context of advertising or as a reference, is only permitted with mutual agreement.
§ 12 Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these GTC and all legal relationships between us and the Buyer, to the exclusion of all international and supranational (contractual) legal systems, in particular the UN Convention on Contracts for the International Sale of Goods. Requirements and effects of the retention of title according to § 6, however, are subject to the law of the respective location of the object, insofar as the choice of law made is inadmissible or ineffective in favour of German law.
(2) If the purchaser is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Dresden. However, we are also entitled to bring an action at the buyer's general place of jurisdiction.
§13 Final provisions
(1) The invalidity of individual provisions of these General Terms and Conditions shall not affect the validity of the remaining provisions and the entire contract. The parties hereby undertake to agree on an effective provision which comes as close as possible to the essence of the invalid provision.
(2) Amendments to this contract must be made in writing. This also applies to the waiving of the written form in oral form.