GENERAL
TERMS AND CONDITIONS (GTC)
for commercial transactions (seller and buyer are entrepreneurs)
Status: August 4, 2024
Foreword
The entrepreneur concludes a large number of contracts in the course of his business activities. To provide guidance, the Hessian Chambers of Industry and Commerce (IHKs) provide model contracts. These terms and conditions are based on these templates.
For individual questions relating to contract law, however, expert advice should always be sought, whether from the relevant Chamber of Industry and Commerce or lawyers.
Note on using the template
This template was created with the greatest care, but makes no claim to completeness or accuracy. It is to be understood as a checklist with formulation aids and is only intended to provide a suggestion as to how the typical interests between the parties can be properly balanced. However, this does not release the user from the responsibility of carefully checking on their own responsibility. For reasons of linguistic simplification, the three genders are not mentioned where a gender-neutral formulation was not possible. In these cases, the male terms used also include the female and various forms. The model contract is only a suggestion for a possible arrangement. Many stipulations can be freely agreed upon. The user can also choose other wording. Before adopting the unchanged content, it is therefore in your own interest to carefully consider whether and in which parts an adjustment to the specific situation to be regulated and the legal development is necessary. Therefore, no liability can be accepted for the effects on the legal position of the parties. Liability for minor negligence is also generally excluded. If you need a tailor-made contract, you should seek advice from a lawyer you trust.
General Terms and Conditions *)
*) Please note the user information on the previous page and the notes in Appendix 1!
§ 1 Scope
1.These terms and conditions of sale apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 Paragraph 1 of the German Civil Code (BGB). We will only accept terms and conditions of the customer that conflict with or deviate from our terms and conditions of sale if we expressly agree to their validity in writing.
2.These terms and conditions of sale also apply to all future transactions with the customer, provided that they are legal transactions of a similar nature (as a precaution, the terms and conditions of sale should always be included in the order confirmation).
3.Individual agreements made with the buyer in individual cases (including ancillary agreements, additions and changes) always take precedence over these terms and conditions of sale. Subject to proof to the contrary, a written contract or our written confirmation is decisive for the content of such agreements.
§ 2 Offer and conclusion of contract
If an order is to be regarded as an offer in accordance with § 145 BGB, we can accept it within two weeks.
§ 3 Documents provided
We reserve ownership and copyright to all documents provided to the customer in connection with the order placement - including in electronic form - such as calculations, drawings, etc. These documents may not be made accessible to third parties unless we give the customer our express written consent. If we do not accept the customer's offer within the period specified in § 2, these documents must be returned to us immediately.
§ 4 Prices and payment
1. Unless otherwise agreed in writing, our prices are ex works, excluding packaging and plus VAT at the applicable rate. Packaging costs will be invoiced separately.
The purchase price must be paid exclusively to the account specified on the reverse. Discounts may only be deducted if a special written agreement has been made.
2. Unless otherwise agreed, the purchase price must be paid within 10 days of delivery (alternatives: "... the purchase price is payable within 21 days of invoicing" or "... the purchase price is payable by - specific date"). Interest on arrears will be charged at a rate of 8% above the respective base interest rate per annum (see Appendix 1). The right to claim higher damages for arrears remains reserved.
3. Unless a fixed price agreement has been made, reasonable price changes due to changes in wage, material and distribution costs for deliveries that take place 3 months or later after the contract has been concluded remain reserved.
§ 5 Rights of retention
The customer is only entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
§ 6 Delivery time
1.The start of the delivery time specified by us requires the timely and proper fulfillment of the customer's obligations. The right to object to the non-fulfillment of the contract remains reserved.
2.If the customer defaults on acceptance or culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage incurred by us in this regard, including any additional expenses. Further claims remain reserved. If the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased item passes to the customer at the time at which the customer defaults on acceptance or payment.
3.In the event of a delay in delivery not caused by us intentionally or through gross negligence, we are liable for each completed week of delay within the framework of a flat-rate compensation for delay amounting to 3% of the delivery value, but not more than 15% of the delivery value.
4.Other statutory claims and rights of the customer due to a delay in delivery remain unaffected.
§ 7 Transfer of risk upon dispatch
If the goods are dispatched to the customer at the customer's request, the risk of accidental loss or accidental deterioration of the goods passes to the customer upon dispatch to the customer, at the latest upon leaving the factory/warehouse. This applies regardless of whether the goods are dispatched from the place of performance or who bears the freight costs.
§ 8 Retention of title
1.We retain ownership of the delivered item until all claims arising from the delivery contract have been paid in full. This also applies to all future deliveries, even if we do not always expressly refer to this. We are entitled to take back the purchased item if the customer acts in breach of contract.
2.The customer is obliged to treat the purchased item with care as long as ownership has not yet been transferred to him. In particular, he is obliged to insure it at his own expense against theft, fire and water damage to the new value (note: only permitted when selling high-value goods). If maintenance and inspection work has to be carried out, the customer must carry this out in a timely manner at his own expense. As long as ownership has not yet been transferred, the customer must notify us immediately in writing if the delivered item is seized or subject to other interventions by third parties. If the third party is unable to reimburse us for the legal and extrajudicial costs of a lawsuit in accordance with Section 771 of the Code of Civil Procedure, the customer is liable for the loss incurred by us.
3.The customer is entitled to resell the reserved goods in the normal course of business. The customer hereby assigns to us the claims against the buyer from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including VAT). This assignment applies regardless of whether the purchased item was resold without or after processing. The customer remains authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended. [Note: This clause does not apply if no extended retention of title is desired.]
4. The processing or transformation of the purchased item by the customer is always carried out in our name and on our behalf. In this case, the customer's expectant right to the purchased item continues to apply to the transformed item. If the purchased item is processed with other items that do not belong to us, we acquire joint ownership of the new item in proportion to the objective value of our purchased item to the other processed items at the time of processing. The same applies in the case of mixing. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer transfers proportionate joint ownership to us and keeps the sole ownership or joint ownership thus created for us. To secure our claims against the customer, the customer also assigns to us any claims that arise against a third party as a result of the combination of the reserved goods with a property; we hereby accept this assignment.
5.We undertake to release the securities to which we are entitled at the request of the customer if their value exceeds the claims to be secured by more than 20%.
§ 9 Warranty and notification of defects as well as recourse/manufacturer's recourse
1. The purchaser's warranty rights presuppose that he has properly fulfilled his inspection and notification obligations pursuant to Section 377 of the German Commercial Code (HGB).
2. Claims for defects expire 12 months after the goods delivered by us have been delivered to our purchaser. The statutory limitation period applies to claims for damages in the event of intent and gross negligence as well as injury to life, body and health that are based on an intentional or negligent breach of duty by the user. (Note: when selling used goods, the warranty period can be completely excluded with the exception of the claims for damages mentioned in sentence 2).
Insofar as the law stipulates longer deadlines in accordance with Section 438 Paragraph 1 No. 2 of the German Civil Code (buildings and items for buildings), Section 445 b of the German Civil Code (right of recourse) and Section 634a Paragraph 1 of the German Civil Code (construction defects), these deadlines apply. Our consent must be obtained before the goods are returned.
3.If, despite all due care, the goods delivered have a defect that was already present at the time of transfer of risk, we will, at our discretion, repair the goods or deliver replacement goods, subject to timely notification of defects. We must always be given the opportunity to remedy the defect within a reasonable period of time. Recourse claims remain unaffected by the above regulation without restriction.
4.If the remedy fails, the customer can - without prejudice to any claims for damages - withdraw from the contract or reduce the remuneration.
5. Claims for defects do not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear, as well as in the case of damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive use, unsuitable operating materials, defective construction work, unsuitable building ground or due to special external influences that are not assumed under the contract. If the customer or third parties carry out improper repair work or modifications, there are also no claims for defects for these and the resulting consequences.
6. Claims by the customer for the expenses required for the purpose of subsequent performance, in particular transport, travel, labor and material costs, are excluded insofar as the expenses increase because the goods delivered by us were subsequently transported to a location other than the customer's branch, unless the transport corresponds to their intended use.
7. The purchaser's recourse claims against us only exist to the extent that the purchaser has not made any agreements with his customer that go beyond the legally mandatory claims for defects. Paragraph 6 also applies accordingly to the scope of the purchaser's recourse claim against the supplier.
§ 10 Miscellaneous
1.This contract and all legal relationships between the parties are subject to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
2.The place of performance and exclusive jurisdiction for all disputes arising from this contract is our place of business, unless otherwise stated in the order confirmation (note: the use of the clause is not permitted if at least one of the parties is a company not registered in the commercial register)
3.All agreements made between the parties for the purpose of executing this contract are set out in writing in this contract.
Appendix
Notes
Although the clause prohibitions in the catalogue of provisions of §§ 308, 309 BGB according to § 310 Para. 1 BGB do not apply to general terms and conditions that are concluded with entrepreneurs within the meaning of § 14 BGB are used, it cannot be automatically assumed that the use of clauses such as those mentioned in §§ 308, 309 BGB towards entrepreneurs will generally withstand the content control of §§ 305 ff. BGB. According to § 307 Para. 1, 2 No. 1 BGB, which also applies to the use of general terms and conditions towards entrepreneurs, an unreasonable disadvantage to the contractual partner is to be assumed in case of doubt if the clause is not compatible with the essential basic ideas of the statutory regulation from which it deviates. According to case law, this means that the catalog of clause prohibitions in §§ 308, 309 BGB also acquire indirect significance in commercial transactions via the interpretation of § 307 BGB. The clause prohibitions of Section 308 of the German Civil Code can generally be applied to sales between companies because the commercial peculiarities are taken into account in their scope for evaluation. In contrast, such a blanket solution is not possible with the prohibitions of Section 309 of the German Civil Code, but the violation of Section 309 is also an indication of the invalidity of the clause in sales between companies. In this case, it is advisable to have a legal expert carry out an individual case review before using the general terms and conditions.
Transparency requirement
This requirement means that in case of doubt, a clause in general terms and conditions is unreasonably disadvantageous even if it is not clear and understandable. This requirement means that non-transparent clauses are to be considered invalid per se, without the addition of an unreasonable disadvantage to the contractual partner in terms of content. Furthermore, this also means that the transparency requirement also applies to price determinations and service-describing clauses, which are generally exempt from content control.
GTC state 04.08.2024