General Terms and Conditions of Purchase
(Date: 30 January 2013)
1 General provisions and applicability
(1) These General Terms and Conditions of Purchase (GTC) shall apply to all business relationships with our business partners and suppliers (hereinafter referred to as ‚Sellers‘). These GTC shall only apply if the Seller is a company (Section 14 of the German Civil Code (BGB)), a corporate body under public law or a special fund under public law.
(2) In particular, these GTC shall apply to agreements regarding the sale and/or delivery of chattels (hereinafter also referred to as ‚Goods‘), regardless of whether the Seller has produced the goods itself or procured them from third-party suppliers. These GTC shall also apply, in their current version, as a framework agreement for future agreements on the sale and/or delivery of Goods with the same Seller, without us being required to refer to them in each individual case.
(3) These GTC apply on an exclusive basis. Any differing, conflicting or supplementary general terms and conditions of the Seller shall only become a part of the contract if and insofar as we have expressly agreed to their applicability in writing. This consent requirement shall apply in all cases, including (for example) if we unreservedly accept deliveries by the Seller whilst being aware of the general terms and conditions of the Seller.
(4) Individual arrangements made with the Seller in an individual case shall always take precedence over these GTC. A written agreement and our written confirmation shall be decisive for the content of such arrangements.
(5) Legally relevant statements and notices to be submitted to us by the Seller after the conclusion of the agreement (e.g. setting deadlines, warnings, notices of withdrawal) must be made in writing in order to be effective.
(6) References to the applicability of statutory regulations are only made for the avoidance of doubt. Therefore, the statutory regulations shall also apply without such clarifications, insofar as they are not directly altered or expressly excluded in these GTC.
2 The conclusion of the contract
(1) At the earliest, our order shall become binding upon being submitted in writing or upon its confirmation. Before accepting the order, the Seller must notify us of any obvious errors (e.g. typing errors or miscalculations) or incompleteness in the order, including the order documents, for the purposes of correction and completion, otherwise the contract shall be deemed to have not been concluded.
(2) The Seller is obliged to confirm our order within a period of days/weeks in writing or, in particular, to carry it out by sending the goods without reservation (acceptance). Delayed acceptance shall be deemed to be a new offer and shall require acceptance by us.
§ 3 Delivery Time and Delay in Delivery
(1) The delivery time specified by us in the order is binding. If the delivery time is not specified in the order and has not been otherwise arranged, it amounts to ^ weeks from the conclusion of the contract. The Seller is obligated to inform us immediately in writing if it is likely it cannot meet the agreed delivery dates – for whatever reasons.
(2) Should the Seller fail to render its service or deliver within the agreed delivery time or run overdue, our rights – particularly that of withdrawal and claims for damages – are determined in accordance with the statutory regulations. The provisions in Section 3 shall remain unaffected.
(3) Should the Seller delay, we may demand – in addition to further legal claims – lump sum compensation for damages resulting from delay amounting to 1% of the net price per ended calendar week, however a total of no more than 5% of the net price of the delayed delivery goods. We reserve the right to furnish evidence that we have suffered a higher degree of damages. The Seller reserves the right to furnish evidence that we have not suffered any damages or considerably less damages.
§ 4 Service, Delivery, Transfer of Risk, Default of Acceptance
(1) Without our prior written consent, the Seller is not entitled to have the service due from it provided by third parties (e.g. sub-contractors). The Seller bears the procurement risk for its services, unless it is a custom production.
(2) The delivery shall be made free to the door within Germany to the location specified in the order. If the destination is not specified and nothing has been arranged otherwise, the delivery must be made to our headquarters. The respective destination is also the place of performance (obligation to provide).
(3) A delivery note stating the date (issue and dispatch), contents of the delivery (item number and quantity) as well as our order ID (date and number) should be included with the delivery. Should the delivery note be missing or incomplete, we cannot be held responsible for delays in processing and payment resulting from this. A corresponding dispatch note containing the same content should be sent to us separately.
(4) The risk of accidental destruction or accidental deterioration of the object passes to us upon handing over at the place of performance. If an acceptance procedure has been agreed, this is decisive for the risk transfer. Furthermore, the statutory regulations on contracts for work and services shall apply accordingly in the event of an acceptance procedure. The same shall apply for handover and/or acceptance if we are in default of acceptance.
(5) The statutory regulations shall apply to any default in acceptance on our part. The Seller must also expressly offer its service to us in the event that an identified or identifiable calendar date is agreed for an action or contribution on our part (e.g. provision of material). In the event that we are in delay of acceptance, the Seller may request compensation for its extra expenses in accordance with statutory regulations (§ 304BGB German Civil Code). If the Contract concerns a non-fungible item that is to be produced by the Seller, the Seller shall only be entitled to further-reaching rights if we have undertaken to contribute and the failure to contribute was our responsibility.
§ 5 Prices and Payment Terms
(1) The price specified in the order is binding. All prices include statutory value-added tax if this is not shown separately.
(2) Unless otherwise agreed in individual cases, the price includes all incidental expenses (e.g. proper packaging, transport costs including possible transport and liability insurance). The Seller must take back packaging material at our request.
(3) The agreed price is payable within 30 calendar days of completed delivery and performance (including any potentially agreed acceptance procedure) and receipt of a proper invoice. If we make the payment within 14 calendar days, the Seller shall grant us a 3% discount on the net amount of the invoice.
(4) We shall not be obliged to pay any overdue payment interest. The entitlement of the Seller to the payment of default interest shall remain unaffected. Statutory regulations shall apply to any default on our part. A warning from the Seller is necessary in any case.
(5) The rights of offsetting and withholding as well as the right to object to unfulfilled contracts are available to us to the extent permitted by law. In particular, we are entitled to withhold payments due as long as we are still entitled to claims against the Seller resulting from incomplete or defect services.
(6) The Seller is only entitled to an offsetting or withholding right as a result of legally established or undisputed counter-claims.
§ 6 Secrecy and Title Retention
(1) We reserve the right to ownership and copyright for images, plans, diagrams, calculations, instructions, product descriptions and other documents. These types of documents should only be used for the contractual service and should be returned to us upon completion of the contract. Secrecy should be maintained vis-à-vis third parties as regards these documents and including after completion of the contract. This secrecy obligation shall only expire if and to the extent that the knowledge contained in the documents supplied has become public knowledge.
(2) The previous provision applies accordingly to substances and materials (e.g. software, finished and half-finished products) as well as to tools, templates, samples and other objects that we provide the Seller with for production. These kinds of objects should – so long as they are not processed – be stored separately at the expense of the Seller and insured to the usual extent against damage and loss.
(3) Any processing, mixing or combining of objects supplied shall be undertaken by Seller for us. If during the processing, mixing or combination with items of third parties their property right should persist, we thus acquire co-ownership of the new items at the ratio of the value of our provided item to the other items.
(4) The transfer of goods to us shall take place unconditionally and regardless of the payment of the price. At any rate, all forms of amplified or extended reservation of title shall be excluded so that a reservation of title declared effective on the part of the Seller shall only be valid until payment for the goods delivered to us and only for these.
§ 7 Defective Delivery
(1) The statutory regulations apply to our rights in the event of defects in goods and title and other violations of obligations by the Seller, unless otherwise specified in the following.
(2) In accordance with statutory regulations, the Seller assumes liability in particular for the goods to be in the agreed condition when it comes to the risk transfer to us. Regarded as an agreement on the condition in any case are those product descriptions which – particularly by means of designation or reference in our order – form the object of the respective contract or which have been incorporated in the contract in the same way as these GTC. Here it makes no difference whether the product description comes from us, from the Seller or from third parties.
(3) By way of derogation from § 442 Section 1 Clause 2 of the BGB (German Civil Code), we are unrestrictedly entitled to claims arising from defects even if the defect remains unknown to us on conclusion of a contract as a result of gross negligence.
(4) The statutory regulations of the Commercial Code (§§ 377 and 381 HGB) shall apply to the commercial duty to examine and requirement to give notice of defects with the following stipulation: Our duty to examine is restricted to defects that come to light during our incoming goods inspection through external examination including of the delivery notes as well as during our quality inspection using a random sample test (e.g. transport damage, wrong delivery and short delivery). If an acceptance procedure has been agreed, there is no duty to examine. Apart from that, it depends on to what extent an examination, taking into the account the circumstances of the individual case, is advisable according to proper business practice. Our obligation to give notice of subsequently discovered defects remains unaffected. In all cases our objection (notice of defect) shall be regarded as immediate and timely if it is received within ….. working days by the Seller.
(5) The costs expended by the Seller for the purposes of examination and subsequent improvement shall be borne by the latter even if it turns out that there was no defect present. Our liability for damages shall remain unaffected in the event of an unjustified request for the elimination of defects; in this respect we shall however only assume liability if we recognised or were grossly negligent in failing to recognise that no defect was present.
(6) If the Seller should fail to fulfil its obligation to supplementary performance – by rectifying the defect (subsequent improvement) or by delivering a defect-free item (replacement) as chosen by us – within an appropriate period set by us, we may eliminate the defect ourselves and request compensation for the expenses necessary for this and/or an appropriate advance payment from the Seller. If the Seller’s supplementary performance fails or if this performance is unacceptable for us (e.g. on account of particular urgency, threat to operational safety or impending occurrence of disproportionate damage) no deadline need be set; the Seller must be notified immediately, beforehand if possible.
(7) Otherwise, in the event of a defect in goods or title we are entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory regulations. We are also entitled to compensation for damages and expenditure in accordance with the statutory regulations.
§ 8 Supplier’s Recourse
(1) Our legally determined rights of recourse within a supply chain (Supplier’s Recourse as defined in §§ 478 and 479 of the German Civil Code BGB) are available to us unrestrictedly alongside claims arising from defects. In particular, we are entitled to demand exactly the same kind of supplementary performance (subsequent improvement or replacement) from the Seller as that which we owe to our customer in individual cases. Our legal option (§ 439 Section 1 of the German Civil Code BGB) shall not be restricted by this.
(2) Before we recognise or fulfil a claim for defects asserted by our customer (including reimbursement of expenses in accordance with §§478 Section 3 and 439 Section 2 of the German Civil Code BGB), we shall inform the Seller and, giving a brief account of the facts, ask for a written comment. If the comment is not provided within a reasonable time and no mutually agreeable solution is brought about, the claim for defects effectively allowed by us shall be regarded as owed to our customer; in this case, the Seller is responsible for providing counter evidence.
(3) Ours claims arising from supplier’s recourse shall apply even if the goods have been further processed before being sold to a consumer by us or one of our customers, e.g. by means of integration into another product.
§ 9 Producer Liability
(1) If the Seller is responsible for product damage, it must indemnify us against the claims of third parties insofar as the cause lies within its area of control and organisation and that it is itself liable vis-à-vis third parties.
(2) Under its obligation to indemnify, the Seller must, in accordance with §§ 683 and 670 of the German Civil Code BGB, reimburse expenses that result from or in connection with claims asserted by third parties including product recalls carried out by us. We shall inform the Seller of the content and scope of the recall measures to be carried out – as far as can be reasonably expected – and give it the opportunity to comment. Further-reaching legal claims shall remain unaffected.
(3) The Seller must take out a product liability insurance policy with a lump-sum coverage of at least … M EUR per personal/property damage and maintain it.
§ 10 Limitation
(1) The reciprocal claims of the contractual parties shall become statute-barred in accordance with the legal provisions unless otherwise specified in the following.
(2) By way of derogation from § 438 Section 1 No 3 of the German Civil Code BGB, the general limitation period for claims for defects is 3 years from transfer of risk. If an acceptance procedure has been agreed, the limitation begins upon acceptance. The 3-year limitation period applies accordingly to claims arising from title defects, whereby the legal limitation period for in rem claims to return of third parties (§ 438 Section 1 No. 1 of the German Civil Code BGB) shall remain unaffected; claims arising out of defects in title shall under no circumstances be statute-barred so long as the third party can still assert the right against us – in particular in the absence of limitation.
(3) The limitation periods of commercial law, including the aforementioned extension, shall apply to the extent permitted by law – to all contractual claims resulting from defects. To the extent that we are also entitled to non-contractual claims for damages because of a defect, the regular statutory limitation period shall apply to this (§§ 195 and 199 of the German Civil Code BGB), unless the application of the limitation periods of commercial law leads to a longer limitation period in individual cases.
§ 11 Applicable Law and Place of Jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these GTC and all legal relations between us and the Seller, excluding all international and supranational (contractual) legal systems, especially the UN Convention on Contracts for the International Sale of Goods. The pre-requisites and effects of the reservation of title are subject to the law at the respective storage location of the item, if, under said law, a choice of law made in favour of German law is not permitted or is void.
(2) If the Seller is a merchant in terms of the German Commercial Code, a corporate body under public law or a special fund under public law, our company headquarters are the sole – even international – place of jurisdiction for all disputes arising from this contractual agreement. We are however also entitled to take legal action at the place of performance of the delivery obligation.
General Terms and Conditions of Sale
(Last updated: 28.10.2014)
§ 1 General, Scope
(1) The present general terms and conditions of sale (GTC) apply to all our business relations with our customers (hereinafter: “Buyer”). The GTC only apply if the Buyer is a contractor (§14 of the German Civil Code BGB), a corporate body under public law or a special fund under public law.
(2) The GTC apply in particular to contracts on the sale and/or the delivery of moveable property (also referred to as: “Goods” in the following), regardless of whether we produce the goods ourselves or acquire them from suppliers (§§433 and 651 of the German Civil Code BGB). These GTC shall also apply, in their current version, as a framework agreement for future agreements on the sale and/or delivery of Goods with the same Seller, without us being required to refer to them in each individual case.
(3) Our GTC apply exclusively. Differing, contradictory or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly consented to their validity. This requirement for consent applies in all cases, for example even when, in full knowledge of the GTC of the Buyer, we carry out the delivery to the latter without reservation.
(4) Agreements made with the Buyer on an individual basis shall always have priority over these GTC. A written contract and/or our written confirmation is decisive for the content these kinds of agreements.
(5) Legally significant declarations and notices that are to be submitted to us by the Buyer after conclusion of the contract (e.g. deadlines, defect notices, declaration of withdrawal or reduction), must be in writing to guarantee their validity.
(6) References to the validity of statutory regulations shall only have clarifying significance. Therefore, statutory regulations shall also apply without such a clarification insofar as they are not directly changed or explicitly excluded in these conditions.
§ 2 Conclusion of Contract
(1) Our offers are subject to change and non-binding. This also applies if we have provided the Buyer with catalogues, technical documentation or other product descriptions or records.
(2) The ordering of goods by the Buyer is regarded as a binding contractual offer. We have the right to accept this contractual offer within four weeks of us receiving it.
(3) This acceptance may declared either in writing or by the delivery of the goods to the Buyer.
§ 3 Delivery Period and Delay in Delivery
(1) The delivery period shall be agreed on individually and/or specified by us upon acceptance of the order.
(2) If we cannot comply with binding delivery periods for reasons for which we cannot be held responsible (non-availability of the service), we shall inform the Buyer of this immediately, disclosing the new foreseeable delivery date at the same time. If the service is not available within the new delivery period either, we are entitled to withdraw from the contract fully or in part; we shall reimburse any possibly already rendered counter-performance. Non-availability of service refers in particular in this sense to delayed internal supply by our supplier if we have concluded a congruent covering transaction. Our statutory rights of withdrawal and termination as well as the legal regulations concerning the completion of the contract if the obligation to perform is excluded shall remain unaffected. The rights of withdrawal and termination of the Buyer under § 8 of these GTC shall also remain unaffected.
(3) The start of our default on delivery shall be determined by the statutory regulations. A warning from the Buyer is necessary in any case. Should we be late in delivery for reasons for which we are responsible, the Buyer may demand lump-sum compensation for any damage suffered by the latter as a result of late delivery. The lump-sum compensation equates to 0.5% of the delivery value for every completed month of delay, however no more than 5% of the delivery value of the late delivery goods in total. We reserve the right to furnish evidence that the Buyer has not suffered any damages or considerably less damages than reflected by the aforementioned lump-sum.
§ 4 Delivery, Risk Transfer, Acceptance and Default in Acceptance
(1) The delivery shall be made ex-works, wherever the place of performance is. The goods shall be sent to another destination at the request and expense of the Buyer (sale by dispatch). Unless otherwise arranged, we are entitled to define the type of dispatch ourselves (in particular transport company, shipping method and packaging).
(2) Surplus or short deliveries of up to 10 per cent of the amounts ordered, even in the event of differences among the individual items, may not be subjected to complaint for any items in your order. In case of customised / customer specifically produced items, we reserve the right to supply and charge or short ship deliveries up to 15 percent.
(3) The risk of accidental destruction or accidental deterioration of the goods passes to the Buyer upon handing over at the place of performance at the latest. However, in the case of sale by dispatch, the risk of accidental destruction or accidental deterioration of the goods as well as the risk of delay passes to the forwarding agent, the haulage contractor or any other party designated to carry out the dispatch, upon dispatch of the goods. If an acceptance procedure has been agreed, this is decisive for the risk transfer. Furthermore, the statutory regulations on contracts for work and services shall apply accordingly in the event of an agreed acceptance procedure. The same shall apply for handover and/or acceptance if the Buyer is in default of acceptance.
(4) In the event that the Buyer is in delay of acceptance, omits to carry out an act of cooperation or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation for damage resulting from this, including extra expenses.
§ 5 Prices and Payment Terms
(1) Our invoices are payable within 8 days of the date of invoice without deduction, unless agreed otherwise in writing.
(2) Prices will be invoiced to confirmed prices or to prices valid at the date of dispatch. Prices are calculated on current raw-material and labour costs. Unexpected increase authorise us to adjust prices or to withdraw the contract free of charge in case of call-orders, multiple delivery orders and orders with a runtime of more than 3 month.
(3) VAT is not included in the prices and is added at the current rate as provided by law to the invoice amount.
(4) In the case of sale by dispatch, the Buyer assumes the transport costs ex works and the costs of any transport insurance wished by the Buyer. Any customs duties, fees, taxes and other public levies shall be borne by the Buyer.
(5) If the above payment period lapses the Buyer will be in default. Interest should be paid on the purchase price at the respectively valid interest rate during default. We reserve the right to assert any further damages caused by default. Our entitlement to commercial overdue payment interest (§ 353 of the German Commercial Code HGB) vis-à-vis merchants shall remain unaffected.
(6) The Buyer is only entitled to offsetting and withholding rights insofar as its claim is legally established or undisputed. § 7 Section 6 shall remain unaffected in the event of defects in the delivery.
(7) If, upon conclusion of the contract, it becomes clear that our claim to the purchase price will be endangered by a lack of solvency on the part of the Buyer, we are entitled to withdraw from the contract in accordance with statutory regulations on refusal of performance. In the case of contracts concerning the manufacture of non-fungible items, we may declare withdrawal immediately; statutory regulations on the dispensability of setting a deadline shall remain unaffected.
§ 6 Title Retention
(1) We reserve the right to the property of the sold goods up until the full payment of all our present and future claims resulting from the purchase contract and an ongoing business relationship (secured claims).
(2) The goods subject to reservation of title may neither be pledged to third parties, nor assigned as collateral before the full payment of the secured claims. The Buyer must inform us immediately in writing if and to the extent that third parties gain access to goods belonging to us.
(3) In the event of action by the Buyer in breach of the terms of the contract, in particular in the event of default on the purchase price due, we are entitled, in accordance with statutory regulations, to withdraw from the contract and to demand the return of the goods on account of the title retention and withdrawal. Should the Buyer fail to pay the purchase price due, we may only assert these rights if we set the Buyer a reasonable period for payment beforehand without success or if such a deadline is unnecessary according to the legal regulations.
(4) The Buyer is authorised to resell and/or further process goods subject to reservation of title in the proper course of business. The following provisions apply in this case.
(a) The reservation of title covers products that are produced by processing, mixing or combining our goods at their full value, whereby we are deemed to be the manufacturer. If during the processing, mixing or combination with items of third parties their property right should persist, we thus acquire co-ownership of the new item at the ratio of the invoice values of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the goods subject to reservation of title.
(b) The Buyer hereby now already assigns to us as collateral the claims against third parties resulting from the resale of the goods or product in total or in the amount of our possible co-ownership share, according to the aforementioned paragraph. We accept the assignment. The obligations of the Buyer stated in Section 2 shall also apply in view of the assigned claims.
(c) We and the Buyer are authorised to collect any debts. We undertake not to collect the debt so long as the Buyer complies with its payment obligations to us, does not default in payment, no application for initiation of insolvency proceedings has been filed and there is no other deficiency in the Customer’s performance capacity. However, if this is the case, we may request that the Buyer discloses to us the assigned claims and their debtors, provides all information necessary for collection, surrenders the relevant documents and informs its debtors (third parties) of the assignment.
(d) If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the Buyer’s request.
§ 7 Default Claims of the Buyer
(1) The statutory regulations apply to the rights of the Buyer in the event of defects in goods and title, unless otherwise specified in the following. The special legal provisions in the case of final delivery of the goods to a consumer (supplier’s recourse according to §§ 478 and 479 of the German Civil Code BGB) shall remain unaffected in all cases.
(2) The primary basis of our liability for defects shall be the agreement made concerning the quality of the goods. Regarded as an agreement on the quality are product descriptions, designated as such, that are surrendered to the Buyer before its order or that are integrated in the contract in the same way as these GTC. As regards the size and thickness tolerance, the normal commercial conditions of the plastic and paper processing industry are agreed for the materials processed by us. The usual deviations in terms of the colour of the raw material, model deviations customary in trade as well as differences between hard proof and production print owing to printing technology are the agreed quality. Counting discrepancies of 2 % higher or lower are deemed agreed. The material thickness may differ by up to 5 % from the thicknesses specified. Size deviations of plus/minus 5 % in format are agreed quality. The ordering party shall assume liability for print or manufacture errors that the Buyer has overlooked in the item labelled by the latter as approved. Furthermore, in the case of custom productions, delivery surpluses or delivery shortfalls of up to 10% can occur.
(3) In the absence of any agreed quality of the goods, the existence of defects shall be determined in accordance with statutory regulations. However, we shall not be held liable for any public statements by third parties.
(4) Claims for asserted made by the Buyer require that it has performed its legal duties to examine and notify (§§ 377 and 381 of the German Commercial Code HGB). If a defect should come apparent during or following the examination, we are to be notified of this immediately in writing. The notice is deemed immediate if it takes place within two weeks, whereby timely issue of the notification suffices to observe the deadline. Regardless of this duty to examine and notify, the Buyer must indicate clear defects (including incorrect and short delivery) in writing within two weeks of delivery, whereby the timely issue of the notification suffices to observe the deadline in this case too. If the Buyer fails to carry out the proper inspection and/or report of defects, our liability for the defect that was not reported is excluded.
(5) If the delivered object is faulty, the Buyer can initially choose whether to request that supplementary performance be provided by remedying the defect (subsequent improvement) or by delivery of a flawless item (replacement). Should the Buyer fail to state which of these two rights it chooses, then we reserve the right to set it a fair time limit for this. If the Buyer does not make the choice within the time-limit, the entitlement to choose passes over to us upon expiry of the time limit.
(6) We are entitled to make the owed supplementary performance dependent on payment of the due purchase price by the Buyer. However, the Buyer is entitled to withhold a reasonable share of the purchase price proportionate to the defect.
(7) The Buyer must give us the time and opportunity necessary for the owed supplementary performance and, in particular, for handing over the objectionable goods for the purposes of examination. In the event of a replacement, the Buyer must return the defect items to us in accordance with statutory regulations.
(8) The expenses, particularly transport, route, labour and material costs necessary for the purposes of examination and supplementary performance shall be borne by us if a defect is actually present. However, we may demand reimbursement of resulting costs, if the Buyer’s request for remedy of defects turns out to be unjustified.
(9) In urgent cases, e.g. in the event of a threat to operational safety or in order to avoid disproportionate damage, the Buyer has the right to remedy the defect itself and to demand reimbursement of the costs objectively necessary for this from us. We should be informed of this sort of self-remedy immediately, beforehand if possible. The Buyer’s right to remedy defects itself does not exist if, according to statutory regulations, we would have been entitled to refuse supplementary performance.
(10)If the supplementary performance fails or a deadline to be set by the Buyer for supplementary performance expires unsuccessfully or is unnecessary according to statutory regulations, the Buyer may withdraw from the purchase contract or reduce the purchase price. However, the right of withdrawal does not exist in the event of an insignificant defect.
(11)Claims of the Buyer to damage compensation and/or the reimbursement of futile expenses shall only exist in accordance with § 8 and are otherwise excluded.
§ 8 Other Liability
(1) Insofar as nothing else results from these GTC including from the following provisions, we shall be liable according to the relevant statutory regulations in the event of violation of contractual and non-contractual obligations.
(2) We shall be liable for compensation – for whatever legal reasons – in the event of intent and gross negligence. In cases of simple negligence we are only liable
(a) for damage resulting from death, physical injury or harm to human health,
(b) for damages resulting from the breach of an essential contractual obligation (obligation, the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the contractual partners can regularly rely); in this case liability is however limited to typical foreseeable damages.
(3) The liability restrictions resulting from Clause 2 do not apply , insofar as we have maliciously failed to disclose a defect or have assumed a guarantee for the condition of the goods. The same applies for claims of the Buyer under product liability law.
(4) The Buyer may only withdraw or terminate the contract on account of a violation of obligation that is not based on a defect, if we are responsible for the violation of the obligation. A free right of termination of the Buyer (in particular under §§651 and 649 of the German Civil Code BGB) is excluded. Otherwise the legal requirements and consequences apply.
§ 9 Limitation
(1) By way of derogation from § 438 Clause 1 No 3 of the German Civil Code BGB, the general limitation period for claims for material defects and defects of title is one year from delivery. If an acceptance procedure has been agreed, the limitation begins upon acceptance.
(2) The special legal stipulations for in rem claims to return of third parties (§ 438 Clause 1 No. 1 of the German Civil Code BGB), in the event of malice on the part of the Seller (§ 438 Clause 3 BGB) and for claims regarding supplier’s recourse in case of final delivery to a consumer (§ 479 BGB) shall remain unaffected.
(3) The aforementioned limitation periods of commercial law also apply to contractual and non-contractual damage compensation claims of the Buyer that are based on a defect in the goods, unless the application of the regular legal limitation period (§§ 195 and 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the product liability law remain unaffected in all cases. Otherwise the statutory limitation periods apply exclusively to claims for damage compensation of the Buyer in accordance with § 8.
§ 10 Applicable Law and Place of Jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these GTC and all legal relations between us and the Buyer, excluding all international and supranational (contractual) legal systems, especially the UN Convention on Contracts for the International Sale of Goods. The pre-requisites and effects of the reservation of title under § 6 are however subject to the law at the respective storage location of the item, if, under said law, a choice of law made in favour of German law is not permitted or is void.
(2) If the Buyer is a merchant as defined by the German Commercial Code, a corporate body under public law or a special fund under public law, our company headquarters are the sole – and international – place of jurisdiction for all disputes arising from this contractual agreement. We are however also entitled to take legal action at the Buyer’s general place of jurisdiction. Unless otherwise specified in the order confirmation, our business seat shall also be the place of performance.
Should this English GTC contradict the German GTC, the German ones shall apply in the case of doubt.