Terms and Conditions of Sale and Delivery

§ 1 Scope, Form

(1) These Terms and Conditions of Sale and Delivery (TCSD) apply to all our business dealings with our customers (“Buyers”). The TCSD apply only if the Buyer is a trader (Section 14 of the German Civil Code (BGB)), a legal person under public law or a special fund under public law.
(2) The TCSD apply in particular to contracts for the sale and/or supply of movable goods (“Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433 and 650 of the German Civil Code (BGB)). Unless otherwise agreed, the TCSD, in the version valid at the time of the Buyer’s order or, in any event, in the version most recently communicated to the Buyer in writing, shall also apply as a framework agreement to future contracts of the same nature, without us having to refer to them again in each individual case.
(3) Our General Terms and Conditions of Sale apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the buyer shall only form part of the contract to the extent that we have expressly agreed to their validity. This requirement for consent applies in all cases, for example even where we carry out the delivery to the buyer without reservation whilst being aware of the buyer’s general terms and conditions.
(4) Individual agreements made with the buyer on a case-by-case basis (including ancillary agreements, additions and amendments) shall in all cases take precedence over these General Terms and Conditions of Sale. Subject to evidence to the contrary, a written contract or our written confirmation shall be decisive as to the content of such agreements.
(5) Legally relevant declarations and notifications by the buyer relating to the contract (e.g. setting of a deadline, notification of defects, withdrawal or reduction in price) must be made in writing, i.e. in written or text form (e.g. letter, email, fax). Statutory formal requirements and further evidence, in particular where there are doubts as to the legitimacy of the person making the declaration, remain unaffected.
(6) References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions therefore apply insofar as they are not directly amended or expressly excluded in these General Terms and Conditions of Sale.

§ 2 Conclusion of the Contract

(1) Our quotations are subject to change and non-binding. This also applies where we have provided the buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, cost estimates, references to DIN standards), other product descriptions or documents – including in electronic form – in respect of which we reserve ownership rights and copyright.
(2) The buyer’s order for the goods shall be deemed a binding offer to enter into a contract. Unless otherwise stated in the order, we are entitled to accept this offer to enter into a contract within 14 days of its receipt by us.
(3) Acceptance may be declared either in writing (e.g. by means of an 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 on a case-by-case basis or specified by us upon acceptance of the order. Unless otherwise specified, the delivery period shall be approximately 8 weeks from the conclusion of the contract.
(2) We are entitled to make partial deliveries.
(3) If we are unable to meet binding delivery times for reasons beyond our control (unavailability of the goods), we shall inform the buyer of this without delay and, at the same time, notify them of the expected new delivery time. If the goods are still unavailable within the new delivery time, we are entitled to withdraw from the contract in whole or in part; we shall refund any consideration already paid by the buyer without delay. In particular, a case of unavailability of the goods in this sense shall be deemed to be the failure of our supplier to deliver to us on time, provided that we have concluded a corresponding covering transaction, neither we nor our supplier are at fault, or we are not obliged to procure the goods in the specific case.
(4) The occurrence of a delay in delivery on our part shall be determined in accordance with the statutory provisions. In any event, however, a reminder from the buyer is required.
(5) The buyer’s rights under Section 9 of these General Terms and Conditions of Sale and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.

§ 4 Research and Development Contracts; Acceptance

(1) Where we are commissioned to develop a product or prototype specified in accordance with the Customer’s requirements (research and development contract), the Customer shall bear the risk that the product to be developed can be used without restriction in the software and hardware environment provided by the Customer for the purposes intended by the Customer and, in particular, that it is compatible with other components or products used by the Customer.
(2) In the case of a research and development contract, we shall only be obliged to provide documentation, plans and other records in so far as this has been expressly agreed. Where such records are provided, this shall not constitute the granting of exclusive rights. Such rights shall remain with us. The customer shall merely be granted a simple, non-transferable right, unlimited in time and geographical scope, to use the documents provided for their own internal documentation purposes. Any publication or disclosure to third parties shall require our prior written consent.
(3) For all research and development contracts, an acceptance of the development outcome shall be agreed. Prior to acceptance, the customer shall, on its own responsibility, examine the development outcome, in particular to ascertain whether it can be used for the purpose intended by the customer and whether it is compatible with the software and hardware environment used or intended by the customer. If this is the case, the client shall authorise us to proceed with production (Declaration of Acceptance and Approval). The Declaration of Acceptance and Approval may also be implied, e.g. through the use of the development results.
(4) In the event of siginificant defects in the development results, the Client may withhold acceptance until the defects have been rectified; the Contractor is entitled and obliged to rectify the defects within a reasonable period. Otherwise, the Client must declare acceptance, where appropriate listing any defects which the Contractor must rectify within a reasonable period.
(5) Acceptance or approval shall also be deemed to have taken place if, within two (2) weeks of the development results being made available in full, the client has not refused acceptance on the grounds of defects that are not merely minor, or has not expressed justified reservations regarding the acceptability of the results.

§ 5 Delivery, Transfer of Risk, Acceptance, Default of Acceptance

(1) Delivery shall be ex works, 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 dispatched to another destination (sale by delivery). Unless otherwise agreed, we shall be entitled to determine the method of dispatch (in particular the carrier, route of dispatch and packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. In the case of a sale by delivery to a specified destination, however, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, passes to the buyer as soon as the goods are handed over to the forwarding agent, the carrier or any other person or organisation designated to carry out the dispatch. Where acceptance has been agreed, this shall be decisive for the passing of risk. In all other respects, too, the statutory provisions governing contracts for work and services shall apply mutatis mutandis to any agreed acceptance. The handover or acceptance shall be deemed to have taken place even if the buyer is in default of acceptance.

§ 6 Prices and Terms of Payment

(1) Unless otherwise agreed in individual cases, our prices current at the time the contract is concluded shall apply, ex works, plus packaging and transport costs and statutory value added tax.
(2) In the case of sale by delivery (§ 4(1)), the buyer shall bear the transport costs ex works and the costs of any transport insurance requested by the buyer. Any customs duties, fees, taxes and other public levies shall be borne by the buyer.
(3) The purchase price is due and payable within 20 working days of the invoice date and delivery. However, we are entitled at any time, even within the context of an ongoing business relationship, to make a delivery, in whole or in part, only against advance payment. We shall declare such a reservation at the latest upon confirmation of the order.
(4) Payment shall generally be made by bank transfer or other non-cash means of payment. The acceptance of other means of payment, such as cheques, bills of exchange or letters of credit, shall be on account of performance only.
(5) Upon expiry of the above payment period, the buyer shall be in default. During the period of default, interest shall be payable on the purchase price at the applicable statutory rate for late payment. We reserve the right to claim further damages arising from the default. Our entitlement to commercial interest on overdue payments (Section 353 of the German Commercial Code (HGB)) remains unaffected in dealings with traders.
(6) The buyer shall only be entitled to rights of set-off or retention to the extent that their claim has been legally established or is undisputed. In the event of defects in the delivery, the buyer’s counter-claims, in particular those pursuant to Section 7(6), second sentence, of these General Terms and Conditions of Sale, shall remain unaffected.
(7) If, after the conclusion of the contract, it becomes apparent (e.g. through an application to open insolvency proceedings) that our claim to the purchase price is at risk due to the buyer’s inability to pay, 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 (Section 321 of the German Civil Code (BGB)). In the case of contracts for the manufacture of non-replaceable goods (bespoke items), we may declare our withdrawal immediately; the statutory provisions regarding the dispensability of setting a time limit remain unaffected.
(8) We reserve the right to adjust prices if there is a period of more than 4 months between the conclusion of the contract and performance, and if, during this period, the factors underlying the price calculation have changed to a significant extent.

§ 7 Retention of title

(1) We reserve title to the goods sold until all our present and future claims arising from the contract of sale and any ongoing business relationship (secured claims) have been paid in full.
(2) The goods subject to retention of title may not be pledged to third parties or transferred as security until the secured claims have been paid in full. The buyer must notify us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. through attachment) seek to seize the goods belonging to us.
(3) In the event of the buyer’s breach of contract, in particular failure to pay the purchase price when due, we are entitled, in accordance with statutory provisions, to withdraw from the contract and/or to demand the return of the goods on the basis of the retention of title. A demand for the return of the goods does not automatically constitute a declaration of withdrawal; rather, we are entitled merely to demand the return of the goods whilst reserving the right to withdraw from the contract. If the buyer fails to pay the purchase price due, we may only exercise these rights if we have previously set the buyer a reasonable deadline for payment without success, or if setting such a deadline is not required under the statutory provisions.
(4) Unless otherwise specified in accordance with (c) below, the buyer is authorised 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 extends to the full value of any products resulting from the processing, mixing or combining of our goods. If, in the event of processing, mixing or combining with goods belonging to third parties, the third parties’ right of ownership remains in force, 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 subject to retention of title.
(b) The buyer hereby assigns to us, by way of security, all claims against third parties arising from the resale of the goods or the resulting product, either in full or to the extent of our share of co-ownership in accordance with the preceding paragraph. We accept this assignment. The buyer’s obligations set out in paragraph 2 shall also apply in respect of the assigned claims.
(c) The buyer remains authorised, alongside us, to collect the claim. We undertake not to collect the claim so long as the buyer meets their payment obligations to us, there is no indication of a lack of solvency on their part, and we do not assert the retention of title by exercising a right in accordance with paragraph 3. Should this, however, be the case, we may demand that the buyer discloses to us the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment. Furthermore, in such a case, we shall be entitled to revoke the buyer’s authorisation to resell or process the goods subject to retention of title.
(d) If the realisable value of the security exceeds our claims by more than 10 per cent, we shall, at the buyer’s request, release security at our discretion.

§ 8 Warranty claims

(1) Unless otherwise specified below, the statutory provisions shall apply to the purchaser’s rights in the event of material defects and defects of title (including incorrect or short deliveries, as well as improper assembly or defective assembly instructions). In all cases, the special statutory provisions governing the final delivery of unprocessed goods to a consumer remain unaffected, even if the consumer has processed them further (supplier’s right of recourse pursuant to Sections 478 of the German Civil Code (BGB)). Claims arising from the supplier’s right of recourse are excluded if the defective goods have been further processed by the buyer or another trader, for example by incorporation into another product.
(2) Our liability for defects is based primarily on the agreement reached regarding the quality of the goods. All product descriptions and manufacturer’s specifications which form part of the individual contract or which were publicly disclosed by us (in particular in catalogues or on our website) at the time the contract was concluded shall be deemed to constitute an agreement regarding the quality of the goods.
(3) Where no agreement has been reached as to the quality, the question of whether or not a defect exists shall be determined in accordance with the statutory provisions (Section 434(1), sentences 2 and 3 of the German Civil Code (BGB)). However, we accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising claims) which the buyer has not drawn to our attention as being decisive for their decision to purchase.
(4) We shall not, as a general rule, be liable for defects of which the buyer was aware at the time of conclusion of the contract or of which the buyer was unaware due to gross negligence (Section 442 of the German Civil Code (BGB)). Furthermore, the buyer’s claims for defects are subject to the condition that they have complied with their statutory obligations to inspect the goods and give notice of defects (Sections 377 and 381 of the German Commercial Code (HGB)). In the case of building materials and other goods intended for installation or further processing, an inspection must in all cases be carried out immediately prior to processing. Should a defect become apparent upon delivery, during the inspection or at any later point in time, we must be notified of this in writing without delay. In all cases, obvious defects must be reported in writing within 6 working days of delivery, and defects not detectable upon inspection must be reported in writing within the same period from the date of discovery. Should the buyer fail to carry out a proper inspection and/or give notice of defects, our liability for any defect that has not been reported, or has not been reported in a timely or proper manner, shall be excluded in accordance with the statutory provisions.

(5) If the goods delivered are defective, we may initially choose whether to provide subsequent performance by rectifying the defect (repair) or by delivering goods free from defects (replacement). Our right to refuse subsequent performance in accordance with the statutory requirements remains unaffected.
(6) We are entitled to make the required subsequent performance conditional upon the buyer paying the purchase price due. The buyer is, however, entitled to withhold a portion of the purchase price commensurate with the defect.
(7) The buyer must allow us the time and opportunity necessary to carry out the required subsequent performance, in particular by handing over the goods subject to complaint for inspection. In the event of a replacement delivery, the buyer must return the defective goods to us in accordance with the statutory provisions. Subsequent performance does not include either the removal of the defective goods or their re-installation, if we were not originally obliged to carry out the installation.
(8) We shall bear or reimburse the costs necessary for the purposes of inspection and subsequent performance – in particular transport, travel, labour and material costs, as well as, where applicable, removal and reinstallation costs – in accordance with the statutory provisions, provided that a defect actually exists. Otherwise, we may demand that the buyer reimburse us for the costs incurred as a result of the unjustified request for rectification (in particular, inspection and transport costs), unless the absence of a defect was not apparent to the buyer.
(9) If rectification has failed, or if a reasonable period to be set by the buyer for rectification has expired without success or is dispensable under statutory provisions, the buyer may withdraw from the contract of sale or reduce the purchase price. However, there is no right of withdrawal in the case of a minor defect.
(10) The buyer’s claims for damages or reimbursement of futile expenditure shall, even in the event of defects, only arise in accordance with § 9 and are otherwise excluded.

§ 9 Excess or short delivery

We reserve the right to deliver a quantity up to 5 per cent more or less than the order quantity due to possible variations in production.

§ 10 Other Liability

(1) Unless otherwise provided for in these General Terms and Conditions, including the following provisions, we shall be liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) We shall be liable for damages – irrespective of the legal basis – under the principle of fault-based liability in cases of wilful misconduct and gross negligence. In cases of ordinary negligence, we shall be liable, subject to statutory limitations on liability (e.g. the standard of care exercised in our own affairs; minor breaches of duty), only
a) for damage resulting from injury to life, limb or health,
b) for damage resulting from a breach of a fundamental contractual obligation (an obligation the fulfilment of which is essential for the proper performance of the contract and on the observance of which the contracting party regularly relies and is entitled to rely); in which case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability arising from paragraph 2 shall also apply in relation to third parties and in the event of breaches of duty by persons (including for their benefit) for whose fault we are liable under statutory provisions. They shall not apply where a defect has been fraudulently concealed or a guarantee as to the quality of the goods has been given, nor shall they apply to claims by the purchaser under the Product Liability Act.
(4) In the event of a breach of duty which does not constitute a defect, the buyer may only rescind the contract or terminate it if we are responsible for the breach of duty. Any unrestricted right of the buyer to terminate the contract (in particular pursuant to Sections 650 and 648 of the German Civil Code (BGB)) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

§ 11 Limitation period

(1) Notwithstanding Section 438(1)(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 the date of delivery. Where acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) If the goods consist of a buildony or an item which, in accordance with its customary use, has been used in a buildony and has caused its defectiveness (building material), the limitation period shall, in accordance with the statutory provision, be five years from delivery (Section 438(1)(2) of the German Civil Code (BGB)). This is without prejudice to any further special statutory provisions on the limitation period (in particular Section 438(1)(1), (3), Sections 444 and 445b of the German Civil Code (BGB)).
(3) The above limitation periods under the law of sale also apply to the purchaser’s contractual and non-contractual claims for damages arising from a defect in the goods, unless the application of the standard statutory limitation period (Sections 195, 199 of the German Civil Code (BGB)) would result in a shorter limitation period in the individual case. Claims for damages by the buyer pursuant to Section 9(2), first and second sentences (a), and under the Product Liability Act shall be subject exclusively to the statutory limitation periods.

§ 12 Choice of law and jurisdiction

(1) These General Terms and Conditions of Sale and the contractual relationship between us and the buyer shall be governed by the law of the Federal Republic of Germany, to the exclusion of any uniform international law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the buyer is a trader within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal person governed by public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Eutin. 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 are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions of Sale (TCSD) or any overriding individual agreement, or at the buyer’s general place of jurisdiction. Overriding statutory provisions, in particular those relating to exclusive jurisdiction, remain unaffected.
Date: 11/2020
Company details: Konzept Energietechnik GmbH, Röntgenstraße 1, 23701 Eutin, Eutin Local Court HRB 551, Managing Director: Dr Horst Steppat

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