GENERAL TERMS OF BUSINESS FOR SALES
Incorporation
The following General Terms of Business shall apply with their incorporation for all pre-contractual and contractual relations between the Buyer and Seller. They shall apply, even without special incorporation, for future pre-contractual and contractual relations.
An incorporation of the Buyerīs General Terms of Business shall not take place. The incorporation of his terms of business through commercial letters of confirmation shall be excluded.
Offers and conclusion of contract
The Sellerīs published prices shall be subject to change without notice until conclusion of the contract.
The Buyerīs offer shall commit the same for at least two weeks after its receipt. In the case of an order value of more than Euro 25,000.00, the commitment period shall be one month. The contract of sale shall materialise if the Sellerīs acknowledgement of the order is sent or the goods order are delivered within the offer acceptance period.
If the acknowledgement of order differs in content from the Buyerīs offer, then the details contained in the acknowledgement of the order shall become the content of the contract, unless the Buyer objects to the acknowledgement of the order within three days after receipt. An order by an agent without authority shall be regarded as approved if the acknowledgement of order has not been objected to in the same manner.
Purchase prices
The purchase prices shall apply ex warehouse plus the costs for dispatch and plus the statutory value-added tax.
The purchase prices agreed shall retain their validity for a period of four months from the conclusion of the contract. If the delivery period is more than four months, the Seller may request the prices in accordance with his General Price Lists. If the purchase price has increased by more than five percent, the Buyer may withdraw from the contract within two weeks of becoming aware of the price increase.
Delivery
If no delivery period is specified in the acknowledgement of order or in any other manner, one of four weeks shall apply. In so far as the Buyerīs co-operation is necessary for meeting the delivery period, the delivery period shall be extended by that length of time in which the co-operation does not occur.
The Seller may deliver the goods ordered in partial deliveries.
Delivery deadlines are only then to be met as transactions at a fixed date if they have been expressly agreed as such.
In the case of a delivery not by the specified date, the Buyer shall only then be entitled to withdraw from the contract and to demand compensation for damage instead of the performance, if the period to be stipulated by him is at least two weeks, three weeks in the case of an order value of more than Euro 25,000.00, and the same has expired unsuccessfully.
The Seller shall not be overdue with his delivery if he is not supplied in good time by his subsupplier, in spite of a careful selection and in spite of concluding the covering transactions in good time. In this case, and in the case of force majeure, the delivery period shall be extended by the term of the impediment to delivery. If the extension of the delivery period is more than one month or if the impediment to delivery is final, both parties may withdraw from the contract.
Sale to destination
If the goods ordered are dispatched, at the Buyerīs request, to him or to a person nominated by him, the risk of accidental loss and accidental deterioration shall pass to the Buyer with the handing-over of the goods to the forwarder. The same shall also apply if the Seller dispatches the goods to a place other than the place of performance, he carries out the dispatch himself, has assumed the costs of the dispatch, or the commissioning or installation on the spot is owed by the Seller.
Claims for compensation, to which the Seller is entitled against the forwarder, are to be assigned to the Buyer on request.
Taking delivery
The Buyer shall have to take delivery of the goods ordered immediately.
The taking of delivery of bulky objects is a main obligation to be performed. If the Buyer is overdue with taking delivery of such an object, the Seller may demand storage costs of one percent of the gross purchase price for the period of the delay without special proof. The Buyer shall be at liberty to prove a smaller loss.
Compensation instead of performance
If the Seller can demand compensation from the Buyer instead of performance, when assessing the damage he may also take a lump-sum compensation amounting to 15 percent of the gross purchase price as the basis. The Buyer shall be at liberty to prove a smaller loss.
Reservation of ownership
Ownership of the goods sold (privileged property) shall remain reserved for so long until all the Sellerīs claims against the buyer arising out of the business relationship have been fulfilled. The reservation of ownership shall also secure, in particular, the Sellerīs claims arising from other business agreements, including all incidental claims.
The Buyer shall be entitled to resell and to transfer ownership of the privileged property within the scope of his normal course of business in his own name to the ultimate customer, so long as he is not overdue with a secured claim of the Seller. The Buyer shall be obliged for his part to sell the privileged property subject to the reservation of ownership and to let the privileged property serve as security for all claims against the ultimate customer to which he is entitled from the business relationship. The Buyer shall be entitled to release non-valued securities towards the ultimate customer with an appropriate security surcharge of 30 percent. At the Sellerīs request, the Buyer shall be obliged to furnish the Seller with information in writing about the extent of existing reservations of ownership and the releases made of securities. Already now, the Buyer assigns all claims against ultimate customers, including the securities granted to him, to which he is entitled on the basis of the contracts of sale to be made and of the property to be reserved in his relationship with the ultimate customer. So long he is not overdue with a secured claim of the Seller, he may collect the assigned claims in his own name.
The Seller is obliged not to reveal the securities designated in Par. 1 and 2 to the ultimate customer, if the Buyer is not overdue with the payment of a claim secured in the Sellerīs favour.
If the Sellerīs receivables, plus a security surcharge of 30 percent, exceed the nominal value of all securities, the Buyer may request the release by the Seller of the securities lying above this. The release shall take place at the Sellerīs option. The claim shall fall due at the end of each calendar quarter in each case, if the Buyer requests release at least one month in advance and sends the Seller an ordered summary of the existing securities with details of their intrinsic value. Before this time, the Buyer may only request a release if he substantiates an important reason. If there are doubts about the intrinsic value of a security that is not to be released, the Seller may raise the security surcharge appropriately at his fair and reasonable discretion (§ 315 German Civil Code [BGB]).
If the Seller is overdue with the payment of a secured receivable, he may no longer dispose of the privileged property, if it does not belong to him, in his own name, or give up possession of it, and not release any securities to the ultimate customerīs favour. In the same manner, he shall no longer be entitled to collect the purchase price claims against the ultimate customer assigned to the seller. The Buyer shall be obliged to give notice in writing of the dispositions designated in Par. 1 and 2. In the case of a default in payment, the Seller shall be irrevocably empowered to make the announcements in the Buyerīs name himself and to submit documents serving as proof to the ultimate customers. Furthermore, the Buyer shall be obliged to furnish the Seller with information in writing immediately on the whereabouts of the privileged property and the holdings of the assigned purchase price claims, and give notice to the Seller of the person of the possessor and the debtor. Privileged property, which is in the Buyerīs possession, is to be handed over to the Seller immediately after his withdrawal from the contracts that have not yet been completely met by the Buyer.
The Sellerīs warranties
Software programs shall have the agreed quality if they are state of the art and are essentially suitable for normal use. The Sellerīs labelling on the properties of the goods are only then to be interpreted as a guarantee if they have been expressly designated as such. The goodsī deviations from public comments by the Seller, the Manufacturer (§ 4 Par. 1 and 2 Product Liability Act [ProdHaftG]) or their assistants shall not substantiate any defects of quality.
The Buyer shall have to check the goods ordered immediately, or within two weeks after their delivery at the latest, for their completeness, their compliance with the order and for any defects of quality, and, if a breach of contract is to be seen, to give notice of the same to the Seller. If the Buyer fails to give notice in good time, the goods shall be regarded as approved. This shall not apply if the breach of contract was not recognisable and was not recognised. In this case, the goods shall be regarded as approved if the notice is not given immediately, at the latest, however, within two weeks after the time that the breach of contract became known. The notices to be given by the Buyer must be made in writing to be effective.
No warranty claims or other claims for compensation, in particular such arising from a breach of duty, shall be made against the Seller for approved goods.
Warranty claims arising from the defectiveness of the goods shall be met by the Seller in the manner that the Seller, at his option, shall remedy the defect or supply an object free of defects (subsequent fulfilment). The Buyer shall only be entitled to the right to withdraw from the contract of sale, to claim compensation instead of the performance or to reduce the purchase price, if the period to be stipulated to the Seller for the subsequent fulfilment is at least three weeks, in the case of an order value of more than Euro 25,000.00 four weeks, and the same has passed unsuccessfully. The Buyer may only assert a claim for compensation subject to the restrictions of clause X.
The Buyerīs claims to subsequent fulfilment and compensation, including the claim to compensation for expenditure in vain, shall become statute-barred in one year after delivery of the goods. This shall not apply if the defect was concealed with intent to deceive or a guarantee was given for the quality of the goods.
The Sellerīs liability
The Buyer may only demand compensation from the Seller on account of damage, which is not based on the infringement of the Sellerīs essential contractual obligations, if the blame for this lies in gross negligence by the same or by a senior member of the Sellerīs staff. In the case of other persons of whom the Seller avails himself when fulfilling his commitment (simple agents), the same shall be liable for the damage designated in clause 1 in the case of intent.
In the case of simple agents, the Seller shall only be liable for damage which is based on an infringement of essential contractual obligations for gross negligence; apart from this, he shall have to answer for every fault. The same shall apply for damage arising from injury to life, limb or health.
In so far as the Seller shall be liable to the Buyer, the liability shall be limited to that damage which, under the circumstances, was foreseeable for the Seller. This limitation of liability shall not apply if the Seller or a senior member of staff is to blame for gross negligence.
XI. Miscellaneous
The Buyer shall not be entitled to assign claims, to which he is entitled on the basis of this contract, to a third party, to pledge or otherwise to dispose of the same without the Sellerīs prior consent.
The Buyer may only offset against the Sellerīs claims, if the claim is undisputed or legally finally and conclusively determined. The assertion of a right of retention by the Buyer is excluded.
The Law of the Federal Republic of Germany shall apply exclusively, with the exception of UN Law on Sales.
The exclusive legal venue shall be Leipzig. The Regional Court (Landgericht) shall have exclusive jurisdiction as regards the subject matter.
Subsequent amendments to these General Terms of Business by the Seller shall become effective after expiry of two weeks after receipt of the amended version, unless the Seller shall have objected to the amendment beforehand in writing.