Terms and conditions
General Terms and Conditions of Sale and Delivery of Christian Ulbricht GmbH & Co. KG
§ 1 General, area of application
(1) These General Terms and Conditions of Sale apply to all of our business relationships with our customers (hereinafter: "Purchasers"). The General Terms and Conditions of Sale apply only if the Purchaser is a business client (§ 14 German Civil Code (Bürgerliches Gesetzbuch, "BGB")). We point out that deliveries take place only to authorized dealers in accordance with the terms conditions of the selective distribution contract.
(2) The General Terms and Conditions of Sale apply in particular to contracts for the sale and/or the supply of movable items (hereinafter also referred to as "Goods"), regardless of whether we manufacture the Goods ourselves or procure them from suppliers (§ 433, § 651 BGB). The General Terms and Conditions of Sale, in their current version, apply as a framework agreement for future contracts for the sale and/or the supply of movable items to the same customer, without us having to refer to them again in each individual case.
(3) Our General Terms and Conditions of Sale apply exclusively. Any differing, conflicting or additional general terms and conditions of business of the Purchaser shall become a component of a contract only insofar as we have expressly agreed to their validity. This requirement of consent applies in any case, for example, even if we carry out a delivery to the Purchaser without reservation while we are being aware of the general terms and conditions of business of the Purchaser.
(4) In individual cases, any individual agreement (including side agreements, supplements and amendments) made with the Purchaser always has priority over these General Terms and Conditions of Sale. A written contract or our written confirmation shall be decisive for the content of any such agreement.
(5) Any legally significant declarations or notifications that are to be delivered to us by the Purchaser after the conclusion of the contract (for example, the setting of deadlines, notifications regarding defects, notice of withdrawal or reduction) must be in written form to be effective.
(6) Any references to the application of statutory provisions only serve the purpose of clarification. Even without such clarification, the statutory provisions, unless they are directly modified or expressly barred in these General Terms and Conditions of Sale, shall apply.
§ 2 Conclusion of a contract
(1) Our offers are subject to change and non-binding. This also applies even if we have delivered to the Purchaser catalogues, any other product descriptions or documents (even in electronic form), for which we reserve ownership rights and copyrights.
(2) The ordering of Goods by the Purchaser constitutes a binding contractual offer. The acceptance of the contractual offer may be declared either in writing (for example, through an order confirmation) or by delivering the Goods to the Purchaser.
§ 3 Delivery period and delay in delivery
(1) The delivery period will be individually agreed or will be stated by us upon the acceptance of the order.
(2) If we are not able to adhere to binding delivery periods for reasons for which we are not responsible (impossibility of performance), we shall immediately inform the Purchaser of this and simultaneously notify the Purchaser of the anticipated new delivery period. If performance remains unavailable within the new delivery period, we shall be entitled to withdraw from all or part of the contract; we shall immediately refund any consideration already paid by the Purchaser. In particular, the late delivery of our suppliers, if we have entered into a congruent covering transaction, is deemed to be an event of impossibility of performance in this sense. This shall not affect our statutory withdrawal and termination rights along with the statutory provisions regarding the performance of the contract if the obligation to perform is excluded (such as impossibility or unreasonableness of performance and/or supplementary performance). Moreover, this shall not affect the withdrawal and termination rights of the Purchaser in accordance with § 8 of these General Terms and Conditions of Sale.
(3) The occurrence of our delay in delivery shall be governed by the statutory provisions.
§ 4 Delivery, passage of risk, acceptance, default of acceptance
(1) Deliveries take place ex-warehouse in Seiffen, which is also the place of performance. At the request and expense of the Purchaser, the Goods will be shipped to a different destination (sales shipment). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular, the transport company, shipping route, packaging).
(2) The risk of accidental loss and accidental deterioration of the Goods shall pass to the Purchaser upon their transfer. However, for a sales shipment, the risk of accidental loss and accidental deterioration of the Goods along with the risk of delay shall pass with the delivery of the Goods to the shipper, the carrier or any other person or institution assigned with the shipment. If an acceptance has been agreed, this shall be controlling for the passage of risk. In addition, the statutory provisions of law on contracts for work and services (Werkvertragsrecht) shall correspondingly apply to an agreed acceptance. Default of acceptance by the Purchaser shall be equivalent to delivery or acceptance.
(3) If the Purchaser is in default of acceptance, fails to act in cooperation or if our delivery is delayed for other reasons for which the Purchaser is responsible, we shall be entitled to demand compensation for the damages that arise from this, including additional expenses (such as storage costs). This shall not affect the proof of greater damages or our statutory claims (in particular, reimbursement for additional expenses, reasonable compensation, termination). The Purchaser retains the right to prove that we did not suffer any damages, or that the damages amount to considerably less than the foregoing lump sum.
§ 5 Prices and payment terms
(1) To the extent not otherwise agreed in the individual case, our prices current at the point in time of the conclusion of the contract, ex-warehouse, subject to the addition of turnover tax, apply. For customer-specific markings, a surcharge of EUR 0.15 per item will be charged.
(2) For a sales shipment (§ 4, para. 1), the Purchaser shall bear the transport costs from the warehouse and the costs of transport insurance that may be desired by the Purchaser. To the extent that, in the individual case, we do not bill the transport costs that have actually been incurred, a flat rate for transport costs (excluding transport insurance) in the amount of EUR 5.50 is deemed to be agreed. The Purchaser bears any customs duties, fees, taxes and other public charges. We do not take back any transport packages or any other packaging according to the packaging regulations; they become the property of the buyer (this does not include pallets).
(3) The purchase price is due and payable within 30 days from invoicing and delivery or acceptance of the goods, as long as no other agreement to the contrary has been made.
(4) Upon the expiration of the preceding payment period (§ 5, para. 3, sentence 1 of the General Terms and Conditions of Sale), the Purchaser shall be in default. During the default, the purchase price is to accrue interest at the applicable statutory default interest rate. We reserve the right to assert further damages caused by delay. With respect to merchants, our claim to commercial maturity interest (§ 353 German Commercial Code (Handelsgesetzbuch, "HGB")) shall remain unaffected.
(5) The Purchaser shall be entitled to set-off or retention rights only to the extent that its claim has been legally established or is undisputed. In the event of defects in the delivery, § 7, para. 8 shall remain unaffected.
(6) If, after conclusion of the contract, it becomes apparent that, due to the lack of ability to pay of the Purchaser (such as through a petition to open insolvency proceedings), we shall be entitled to, in accordance with the statutory provisions, withhold performance and – if applicable, after setting a deadline – withdraw from the contract (§ 321 BGB). With contracts for the manufacture of non-fungible items (individual productions), we may declare our withdrawal immediately; the statutory provisions concerning the lack of necessity to set a deadline shall remain unaffected.
§ 6 Retention of title
(1) Until full payment for all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims), we reserve title to the Goods sold.
(2) Prior to full payment for the secured claims, the Goods subject to retention of title may neither be pledged to third parties nor transferred by way of security. The Purchaser must immediately inform us in writing if and to the extent that third parties have access to the Goods that belong to us.
(3) In the event of conduct on the part of the Purchaser that is contrary to the terms of the contract, in particular in the event of non-payment of the purchase price that is due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and reclaim the Goods on the basis of the retention of title and the withdrawal. If the Purchaser does not pay the purchase price that is due, we may assert such rights only if we have previously set a reasonable deadline for payment for the Purchaser, without success, or if such a deadline is unnecessary in accordance with the statutory provisions.
(4) The Purchaser is authorized to resell and/or process the Goods subject to retention of title in the legitimate course of business. Upon such an event, the following provisions shall apply as supplemental provisions:
(a) The retention of title extends to the products resulting from the processing, mixing or combination of our Goods at their full value; in doing so, we are deemed to be the manufacturer. If the ownership rights of any third party continue to exist upon a processing, mixing or combination with Goods of such third party, we shall acquire co-ownership in proportion to the invoice value of the processed, mixed or combined Goods. In all other respects, this shall apply to the resulting product as it does to the Goods delivered subject to retention of title.
(b) The Purchaser hereby assigns to us as security the claims against any third party arising from the resale of the Goods or products, as a whole or in the amount of our co-ownership share in accordance with the preceding paragraph, as the case may be. We hereby accept the assignment. The obligations of the Purchaser set forth in para. 2 shall also apply with respect to the assigned claims.
(c) In addition to us, the Purchaser shall be authorized to collect the claim. We are obligated not to collect the claim as long as the Purchaser complies with its payment obligations with respect to us, the Purchaser does not fall into arrears, no application for opening insolvency proceedings is filed, and there is no deficiency in its ability to pay. However, if this is the case, we may demand that the Purchaser notifies us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(d) If the realizable value of the collateral items exceeds our claims by more than 10%, upon the Purchaser's request, we shall release collateral items at our selection.
§ 7 Claims for defects of the Purchaser
(1) For the Purchaser's rights regarding defects of quality and title (including incorrect and shortfall deliveries along with improper assembly or defective assembly instructions), the statutory provisions shall apply, to the extent not otherwise determined below. In all cases, the statutory special provisions for the final delivery of Goods to a consumer (supplier recourse in accordance with § 478, § 479 BGB) shall remain unaffected.
(2) The basis of our liability for defects is primarily the agreement made regarding the condition of the Goods. The product descriptions designated as such, which were delivered to the Purchaser prior to its order or were included in the contract in the same manner as these General Terms and Conditions of Sale, shall be deemed to be an agreement regarding the condition of the Goods.
(3) To the extent that the condition has not been agreed, whether or not there is a defect is to be evaluated in accordance with the statutory provision (§ 434 para. 1, sentences 2 and 3 BGB).
(4) A defect claim of the Purchaser requires that it has complied with its statutory duties to examine and complain (§ 377, § 381 HGB). If a defect appears during the examination or later, we must be immediately notified of this. A notification shall be deemed to be immediate if it takes place within two weeks; the timely sending of the notification shall be sufficient for satisfying the deadline. The notification must be in writing. Regardless of the preceding duties to examine and complain, the Purchaser must provide notification of any obvious defect (including an incorrect or shortfall delivery) within two weeks from delivery; the timely sending of the notification of defect shall be sufficient for satisfying the deadline. The notification must be in writing. If the Purchaser fails to provide the notifications of defects set forth above, our liability for the defects that have not been notified shall be barred.
(5) If the delivered item is defective, as supplementary performance, the Purchaser may initially demand, at its selection, the remedy of the defect (improvement) or the delivery of a defect-free item (substitute delivery). If the Purchaser does not declare which of the two rights it selects, we may set a reasonable time limit for it for this purpose. If the Purchaser does not make the selection within the time limit, the right to select shall pass to us upon the expiration of the time limit.
(6) We shall be entitled to make the supplementary performance that is owed dependent on the Purchaser paying the purchase price that is due. However, the Purchaser shall be entitled to withhold a reasonable part of the purchase price, proportionate to the defect.
(7) The Purchaser must give us the necessary time and opportunity for supplementary performance that is owed; in particular, it must deliver the Goods subject to complaint for examination purposes. We shall bear the expenses necessary for supplementary performance, in particular the transport, travel, labor and material costs. In the event of a substitute delivery, the Purchaser must return the defective item in accordance with the statutory provisions.
(8) In urgent cases (for example, when there is a risk to operational safety or in order to avoid excessive damages), the Purchaser shall have the right to remedy the defect itself and demand reimbursement of the expenses objectively necessary for this. We shall be notified immediately, if possible beforehand, of such self-action. The right to self-action does not exist if, in accordance with the statutory provisions, we would have been entitled to refuse supplementary performance.
(9) If the supplementary performance has failed or a time limit set by the Purchaser for the supplementary performance has expired without success or is unnecessary in accordance with the statutory provisions, the Purchaser may withdraw from the contract or reduce the purchase price. However, there shall be no right of withdrawal for a minor defect.
(10) Any claims of the Purchaser for damages or compensation for fruitless expenses shall only exist in accordance with § 8; in all other respects, they shall be barred.
§ 8 Other liability
(1) To the extent that nothing else arises from these General Terms and Conditions of Sale (including the following provisions), we shall be liable for any breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) For damages, we shall be liable – regardless of the legal grounds – for intentional acts and gross negligence For any event of simple negligence, we shall be liable only
a) for damages arising from an injury to life, limb or health,
b) for damages arising from a breach of a material contractual obligation (the fulfillment of which is a prerequisite for enabling the proper fulfillment of the contract in the first place, and the adherence to which the contractual partner regularly relies and may rely); upon such an event, our liability shall be limited to compensation for foreseeable damages that typically occur.
(3) The liability limitations arising from para. 2 shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the condition of the Goods. The same applies to claims of the Purchaser under the German Product Liability Act (Produkthaftungsgesetz).
(4) For any breach of duty that does not consist of a defect, the Purchaser may withdraw from the contract or terminate the contract only if we are responsible for the breach of duty. An unrestricted right of termination on the part of the Purchaser (in particular in accordance with § 651, § 649 BGB) is barred. In all other respects, statutory requirements and legal consequences shall apply.
§ 9 Limitation period
(1) The mutual claims of the contracting parties shall be time-barred in accordance with the statutory provisions, to the extent nothing else is specified below.
(2) Notwithstanding § 438, para. 1, no. 3 BGB, the general limitation period for claims arising from defects of quality and title amounts to one year after delivery. If acceptance has been agreed, the limitation period shall begin with the acceptance.
(3) The statutory special rules for in rem claims of third parties for the return of property (§ 438, para. 1, no. 1 BGB), for buildings and building materials (§ 438, para. 1, no. 2 BGB) for claims for suppliers' recourse (§ 479 BGB) and for claims for damages set forth in § 8, paras. 2 and 3 shall remain unaffected. In such cases, the statutory provisions on limitation periods shall exclusively apply.
(4) To the extent that we owe the Purchaser compensation for damages based on § 8 due to or as a result of a defect, the statutory limitation periods of the sales law (§ 438 BGB) shall also apply to competing non-contractual compensation claims, unless the application of the regular statutory limitation period (§ 195, § 199 BGB) leads to a shorter limitation period in the individual case. The limitation periods of the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected in any event.
§ 10 Choice of law and area of jurisdiction
(1) For these General Terms and Conditions of Sale and all legal relationships between us and the Purchaser, the law of the Federal Republic of Germany shall apply, to the exclusion of all international and supranational (contractual) legal systems, in particular UN sales law. However, the conditions and effects of the retention of title in accordance with § 6 are subject to the law of the respective storage location of the item, to the extent that the choice of law that was made in favor of German law is inadmissible or ineffective.
(2) If the Purchaser is a merchant (Kaufmann) within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the exclusive – also international – area of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered office in Seiffen. However, we are also entitled to bring suit at the general area of jurisdiction of the Purchaser.