General Terms and Conditions
General Conditions of Sale of Carl Dietrich GmbH – Finsterau 31F, DE-09518 Großrückerswalde
§ 1 General, Scope of Application
(1) The present General Conditions of Sale (GCS) apply to all our business relations with our customers (hereinafter “Buyer”) which are entrepreneurs within the meaning of § 14 BGB (German Civil Code).
(2) The General Terms and Conditions of Business shall apply exclusively in their respective versions. Deviating, conflicting or supplementary terms and conditions of the Purchaser shall only become a contractual part insofar as we have expressly consented to their validity in writing.
(3) Legal declarations and announcements which are to be handed over to the purchaser after conclusion of the contract (eg deadlines, notification of defects, declaration of withdrawal or reduction) shall be deemed to be in writing.
§ 2 Conclusion of contract
(1) Our offers are free and non-binding. This also applies if we have given the buyer catalogs, other product descriptions or documents – also in electronic form – on which we reserve all property rights and copyrights.
(2) The order of the goods by the buyer is considered a binding contract offer. The acceptance may be declared either in writing (eg by order confirmation) or by delivery of the goods to the buyer.
(3) Illustrations, drawings, measurements, quality data, color shades are industry-common approximations. Deviations which are customary in trade, technical changes as well as changes in form, color and / or quality are reserved, if such changes and deviations are reasonable considering the buyer’s interest.
§ 3 Delivery and delay of delivery
(1) The delivery dates stated by us are, in principle, without obligation, subject to individual agreements, and only indicate the date at which delivery is to be expected at the earliest. We shall be entitled to partial deliveries to a reasonable extent.
(2) Unless we are able to comply with binding delivery periods for reasons beyond our control (non-availability of the service), we shall inform the buyer without undue delay and at the same time notify the expected new delivery period. If the service is not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already paid by the Purchaser. A case of the non-availability of the service in this sense is especially the delayed self-supply through our supplier, if we have concluded a congruent covering transaction and if it is not the fault of either ourselves or our supplier and if in individual cases we are not bound to procurement.
§ 4 Delivery, Transfer of Risk, Acceptance, Delay in Acceptance
(1) Unless otherwise agreed, delivery shall be ex-warehouse, which is also the place of performance. At the Purchaser’s request and expense, the goods will be shipped to another destination (shipment purchase). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular, transport company, shipping route, packaging).
(2) The risk of the accidental loss and the accidental deterioration of the goods shall pass to the buyer at the latest upon handover. However, the risk of accidental loss and the accidental deterioration of the goods as well as the risk of delays are already passed with the transfer to the forwarder, the carrier or the person or institution who is otherwise destined to carry out the dispatch.
(3) If the purchaser is in default of acceptance, fails to cooperate, or if our delivery is delayed for other reasons for which the purchaser is responsible, we are entitled to demand compensation for the resulting damage, including additional costs (eg storage costs). The proof of a higher damage and our statutory claims (in particular replacement of extra charges, reasonable compensation, termination) shall remain unaffected; the lump sum is however to count on further monetary claims. The buyer is entitled to proof that we have suffered no or only a significantly lower loss than the above-mentioned lump sum.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in the individual case, our prices are valid at the time of conclusion of the contract, ex-works, plus statutory value-added tax.
(2) The purchaser bears the transport costs from the warehouse at the time of dispatch (§ 4 para. 1). For shipping within Germany, a transport cost lump sum of EUR 6.95 per carton shall be deemed agreed. The minimum order value is 50 EUR net. From a net order value of 100 EUR the delivery within Germany is freight-free. A dispatch abroad is calculated according to expenditure. Any duties, fees, taxes and other public charges shall be borne by the buyer. Transport and all other packaging in accordance with the Packaging Ordinance shall not be taken back; they become property of the Purchaser; except pallets.
(3) Unless otherwise agreed in writing, the purchase price shall be payable and payable without deduction within 30 days from the invoice date and delivery of the goods. In case of payment within 14 days, 2% cash discount will be granted, the buyer gives us an authorization to the bank account we grant 3% cash discount.
(4) The buyer is in default with the expiration of the preceding payment period. The purchase price is to be paid during the default at the respective statutory interest rate. We reserve the right to assert further claims for delay. Our claim to the commercial maturity interest (§ 353 HGB) remains unaffected by merchants.
(5) The buyer shall be entitled to set-off or retention only insofar as his claim is legally binding or undisputed. In the case of defects in the delivery, the buyer’s opposing rights shall remain unaffected, in particular in accordance with section 7 (6) sentence 2 of these General Terms and Conditions.
(6) If the purchaser is guilty of a breach of payment, we are entitled to set the entire residual purchase price due. In addition, we are entitled to demand appropriate security payments to the extent of the outstanding claims. We are entitled to demand security deposits in the amount of the outstanding claims even if, after conclusion of the contract, we become aware that our claim to the purchase price is jeopardized by a lack of the buyer’s ability to perform. If the buyer does not provide the required security deposit, we can withdraw from the contract.
§ 6 Retention of title
(1) Until the full payment of all our present and future claims arising from the purchase contract and a current business relationship (secured claims), we retain ownership of the sold goods.
(2) The goods subject to retention of title may neither be pledged to third parties nor transferred for security before full payment of the secured claims. The purchaser must immediately notify us in writing if and insofar as access by third parties to the goods belonging to us takes place.
(3) At his own expense, the purchaser shall provide us with adequate insurance for the goods subject to retention of title, and shall, at any time, present these at our request.
(4) In the case of breach of contract by the buyer, in particular in the case of non-payment of the purchase price due, we are entitled to withdraw from the contract or to demand the goods due to the retention of title. The demand for restitution of the goods simultaneously represents withdrawal from the contract.
(5) The buyer is authorized to resell and / or process the goods subject to retention of title in the normal course of business. In this case, the following provisions shall apply in addition.
a) Already now, the buyer cedes the receivables towards third parties to us in full or respective to our partial ownership according to the previous paragraph as security. We accept the assignment. The obligations of the buyer as set out in paragraph 2 shall also apply in respect of the assigned claims.
(b) The buyer remains empowered to collect the claim. We undertake nothing to collect the receivables as long as the buyer complies with his payment obligations, does not fall into arrears with payment, no application for opening insolvency proceedings is filed and no other lack of his capacity exists. If this is the case, we can demand that the buyer notifies us of the assigned claims and their debtors, provides all the necessary details for collection, hands over the related documents and notifies the debtors (third parties) of the assignment.
(6) The customer has to give us or our authorized agents access to the reserved goods at any time during normal business hours and to give us the opportunity to check and to identify them properly.
(7) If the realizable value of the securities exceeds our claims by more than 10%, we shall, at the Purchaser’s option, release securities at our discretion.
§ 7 Deficiency claims of the buyer
(1) The statutory provisions apply to the rights of the purchaser in the case of material and legal deficiencies (including incorrect and short delivery), unless otherwise stipulated in the following. 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 for our liability for defects is, in particular, the agreement regarding the nature of the goods. As an agreement on the quality of the goods, all product descriptions, which are the subject of the individual contract, are valid according to § 2 section 3.
(3) The purchaser’s claims for defects presuppose that he has complied with his statutory duties of inspection and complaint (§§ 377, 381 HGB). If a defect is found during the examination or later, we must be informed immediately in writing. Irrespective of this obligation to inspect and to notify the buyer, the purchaser shall immediately notify the customer in writing of any obvious deficiencies (including incorrect or short delivery), whereby timely sending of the notification is sufficient to ensure the deadline. If the purchaser fails to inspect and / or correct the defect, our liability for the non-indicated defect is excluded.
(5) In the case of a replacement delivery, the buyer has to return the defective item according to the legal regulations and after prior consultation with the seller. The Seller may, at his own discretion, waive the costs and the cost of the return to those.
(6) We shall bear the expenses necessary for the purpose of the inspection and supplementary performance, in particular transportation, travel, work and material costs (not: removal and installation costs) if a defect actually exists. If, however, a claim for the buyer’s elimination or rectification of the defect becomes unjustified, we can demand the costs resulting from the replacement from the buyer.
(7) If the supplementary performance has failed or if a reasonable deadline to be set by the purchaser for the supplementary performance has expired without success or is dispensed with according to the statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price. In a minor defect, however, there is no right of withdrawal.
(8) Any claims by the buyer for damages or replacement of futile expenses shall only be made in accordance with § 8 and shall be excluded.
§ 8 Other Liability
(1) Unless otherwise specified in these General Terms and Conditions, including the following provisions, we shall be liable in the case of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) We shall be liable for damages – irrespective of the legal grounds – in case of intent and gross negligence. In case of simple negligence, we are only liable
a) for damages resulting from injury to life, body or health,
b) for damages resulting from a breach of a material contractual obligation (obligation whose fulfillment of the contractual performance is only possible at first and on the compliance of which the contractual partner trusts and may regularly trust); in this case, however, our liability is limited to the replacement of the foreseeable, typically occurring damage.
(3) Due to a breach of duty which does not effect in a defect, the buyer can only rescind or terminate if we are responsible for the breach of duty.
§ 9 Limitation period
(1) By way of derogation from § 438 para. 1 no. 3 BGB, the general limitation period for claims arising out of material and legal deficiencies shall be one year from delivery.
(2) The above limitation periods of the sales law also apply to contractual and non-contractual damage compensation claims of the buyer which are based on a defect of the goods, unless the application of the regular statutory statute of limitation (§§ 195, 199 BGB) leads to a shorter limitation period. The limitation of the product liability law remains unaffected in any case. Otherwise, the statutory limitation periods apply exclusively to claims for damages by the buyer pursuant to § 8.
§ 10 Choice of law and jurisdiction, partial ineffectiveness
(1) For this GCS and all legal relations between us and the buyer the right of the Federal Republic of Germany applies under exclusion of international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(2) Should provisions of these General Terms and Conditions be or become invalid, the validity of the remaining provisions shall remain unaffected.
(3) If the buyer is a merchant within the meaning of the Commercial Code, a legal person of public law or a public special fund, DE-09496 Marienberg is the exclusive, also international, jurisdiction for all disputes arising directly or indirectly from the contractual relationship. However, we are also entitled to file a suit at the general court of the buyer.
Effective 2019-Sept. 01