1. General provisions, applicability and formal requirement
(1) These General Terms and Conditions of Sale and Supply („General Terms and Conditions”) shall apply to all our commercial relationships with our clients, provided they are an entrepreneur (Section 14 of the German Civil Code [BGB]), legal person under public law, or a special asset under public law (hereinafter referred to as “Purchasers”).
(2) Our General Terms and Conditions shall in particular apply to contracts for the sale and supply of movable things (“Products”), regardless of whether we buy the Products from sub-contractors or produce them ourselves (Sections 433, 651 BGB). Our General Terms and Conditions in the current version shall also apply as a framework agreement to future contracts for our Products with the same Purchaser, without the need for us to refer to them specifically in each individual case; we shall notify the Purchaser of any changes to our General Terms and Conditions without delay.
(3) Our General Terms and Conditions shall apply exclusively. Any deviating, conflicting or supplementary General Terms and Conditions of the Purchaser shall only become an integral part of the contract if, and only to the extent that, we have explicitly approved their validity. This approval requirement shall apply in all cases, including where, in knowledge of the Purchaser’s general terms and conditions, we carry out the delivery to the Purchaser without reservation.
(4) Any individual agreements made with the Purchaser in individual cases shall take precedence over our General Terms and Conditions.
(5) Unilateral declarations and notifications (including setting of cure periods, notifications of defect, withdrawal of contract or reduction of price) which are to be made to us by the Purchaser after conclusion of the contract require written form at least for their effectiveness.
(6) References to the applicability of statutory provisions are for the purposes of clarification only. The statutory provisions shall therefore apply even without such clarification insofar as they are not specifically amended or excluded in these General Terms and Conditions.
2. Contract conclusion
(1) Our offers are subject to change and non-binding.
(2) The order of the Purchaser shall be deemed to be a binding contractual offer. We may accept this offer either explicitly (e.g. by order confirmation) or implicitly (e.g. by delivery of the Products to the Purchaser).
(3) We generally only accept contracts for a minimum net order value of EUR 100.00.
3. Delivery terms and delay in delivery
(1) Delivery terms shall be agreed in each individual case.
(2) The occurrence of delay in delivery is determined according to the statutory provisions. Taking into account of the statutory exceptions a reminder by the Purchaser shall be required.
4. Delivery, transfer of risk and delay in acceptance
(1) Partial shipments shall be permitted to the extent reasonably acceptable to the Purchaser.
(2) The delivery is carried out ex our warehouse in 53797 Lohmar, Germany (Incoterms® 2010: EXW).
(3) At the request and cost of the Purchaser, Products will be supplied to a place other than the place of performance (sales shipment; Versendungskauf). We reserve the right to decide on a discretionary basis upon dispatch type (in particular, carrier, dispatch route, packaging) taking into account reasonable instructions by the Purchaser.
(4) The Purchaser shall be responsible to procure insurance. At the request and cost of the Purchaser we procure insurance coverage for the Products against transport damages.
(5) The risk of accidental loss and accidental deterioration of the Products shall pass to the Purchaser by no later than when the Products are ready for pick up. In case of sales shipment (Versendungskauf) the risk of accidental loss and accidental deterioration of the Products and the risk of delay shall already pass to the Purchaser upon handover of the goods to the shipping company, the carrier, or any other person or institution instructed to perform the delivery. It is deemed equivalent to the handover if the Purchaser is in default in acceptance.
(6) If the Purchaser is in default in acceptance or where the Purchaser fails to provide due cooperation, or where our delivery is delayed for other reasons for which the Purchaser is responsible, we shall be entitled to claim compensation for any resulting damages, including additional expenses (e.g. storage costs).
5. Prices and ancillary costs
(1) Unless otherwise agreed in individual cases, the prices quoted in the price list applicable at the time of contract conclusion shall apply ex place of performance (Incoterms® 2010: EXW), plus VAT at the applicable statutory rate.
(2) In case of sales shipment (Versendungskauf) the Purchaser shall pay the shipping costs from the place of performance and the costs of any transport insurance requested by the Purchaser in accordance with Section 4 (4).
(3) Unless shipping costs and all other packaging costs in accordance with the German Packaging Ordinance are expressly included in the price agreed, they shall be charged at cost. We do not take back packaging; it shall become the property of the Purchaser.
6. Payment terms, late payment, offsetting, retention, and withdrawal due to Purchaser’s inability to pay
(1) The purchase price shall be due and payable as agreed with the customer and confirmed.. Decisive for the payment in a timely manner is receipt of payment on our bank account. Any agreements concerning advance payment in individual cases must be observed.
(2) The Purchaser shall be in default with the expiry of the afore-mentioned payment deadline. During payment default interest on the purchase price shall be charged at the applicable statutory default interest rate. In addition, we shall be entitled to claim a flat charge of EUR 40.00 in accordance with Section 288 (5) BGB in the event of default. We reserve the right to claim any further damages resulting from the default. Furthermore, any additional statutory, in particular the option to withdraw from the contract in accordance with the statutory provisions, shall be unaffected.
(3) Any agreed discounts shall be subject to all previous invoices due for payment having been settled.
(4) The Purchaser shall only be entitled to rights of offsetting and retention to the extent that its counterclaims have been finally established by a court of law, are undisputed, or acknowledged by us. In addition, the Purchaser may assert a right of retention for counterclaims only based upon the same contractual relationship.
(5) Where, after contract conclusion, it becomes apparent that our claim to the purchase price is jeopardised by a lack of payment ability on the part of the Purchaser (e.g. by an application to open insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and to withdraw from the contract in accordance with Section 321 BGB.
7. Retention of title
(1) We reserve ownership to the sold Products until full payment of all our current and future claims from the purchase agreement and the current commercial relationship (secured claims).
(2) Products subject to retention of title may not be pledged to third parties nor transferred as security until full payment of the secured claims. The Purchaser shall inform us immediately in writing if and to what extent third parties access Products that belong to us and are covered under retention of title.
(3) In the event of breach of contract on the part of the Purchaser, in particular in the event of nonpayment of the due purchase price, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand surrender of the Products on the basis of the retention of title.
(4) The Purchaser shall be entitled to dispose of the Products subject to our retention of title in the course of ordinary business proceedings. In this case, the following provisions shall additionally apply:
(a) The Purchaser hereby assigns to us as security the entirety of any claims arising against third parties from a resale of the Products with immediate effect. We accept the assignment. The Purchaser’s obligations specified in paragraph 7 shall also apply with regard to the assigned claims.
(b) Besides ourselves the Purchaser shall be entitled to collect the claims. We undertake to refrain from collecting the claims for as long as the Purchaser complies with its payment obligations to us, is not in default with regard to payment obligations, no application to open insolvency proceedings has been filed and there is no other impediment to the Purchaser’s ability to perform. However, if this is the case, we may ask the Purchaser to disclose the assigned claims and their debtors, to provide us with all necessary details, to surrender the pertinent documents and to inform the debtors (third parties) of the assignment.
(c) Where the realisable value of the securities exceeds our claims by over 10% we shall release securities chosen by us at the Purchaser’s request.
8. Quality of Products, notification of defect, inspection for defects, Purchaser’s claims in case of defects, and return of Products free from defects
(1) Unless stipulated otherwise below, the statutory provisions shall apply to the Purchaser’s rights in the event of material defects or defects in title. The special statutory regulations applicable to final delivery of the Products to a consumer (supplier’s recourse pursuant to Sections 478, 479 BGB) shall be unaffected in all cases, provided they are not expressly specified as concessionary law.
(2) Our liability for defects shall be based on the qualities and attributes and the purpose of our Products as specified in our Product specification, which shall form an integral part of the contract between us and the Purchaser. Unless agreed otherwise in individual cases, none of the details concerning measurements, weights, descriptions and illustrations provided in brochures, catalogues or price lists related to the Products or
our offers shall be construed to constitute specifications of condition, assurance of a particular quality or attribute, or the granting of a guarantee.
Small deviations from the Product specification with regard to product range, quality, colour, width, weight, equipment or design of the Products which are common in trade or technically unavoidable and do not interfere with the agreed purpose for which the Products are to be used shall not constitute a defect.
(3) The Purchaser shall notify us in writing of any obvious defects (including wrong delivery or short delivery) within two weeks of supply; timely dispatch of notification of the defect shall be deemed as adherence to said deadline. Where the Purchaser fails to perform a proper inspection and/or to render due notification of defect, our liability for the defect not notified shall be excluded. Furthermore, the Purchaser’s claims for defects in commercial transactions shall be subject to the Purchaser’s having fulfilled its statutory duties to inspect and notify (Sections 377, 381 of the German Commercial Code (HGB)).
(4) The Purchaser shall restrict the opening of packaging for transport, secondary and product packaging for the purposes of inspection following delivery to the necessary extent. Where the Purchaser notifies us of a defect it shall make the Products available to us for the purposes of inspection. The Purchaser shall not be entitled to return Products affected by an alleged defect to us without our request. Rather, we shall collect the Products within a reasonable time period following the notification of an alleged defect, at our risk and cost. The goods must be made available in a reasonable manner, wherever possible in their original packaging.
We shall be entitled to inspect the goods for the alleged defect on site. We shall not be under any obligation to take back the goods in the event that the notification was made unjustified. The costs of travel to the site shall be reimbursed by the Purchaser. Where, following return of the Products to us, an inspection reveals that the notification of defect was unjustified, we shall deliver the Products back to the Purchaser at the Purchaser’s risk and cost. We shall be entitled to request payment of our return shipping costs, the costs of redelivery and the costs of inspection and managing the notification of defect incurred on our part prior to redelivery. This shall
not affect our claim to payment of the purchase price. In the event that the Purchaser returns the Products to us without request from us we shall be entitled to refuse acceptance of the Products. Where we do accept the Products for inspection purposes and it becomes apparent that the notification of defect was unjustified, we shall redeliver the Products to the Purchaser at the Purchaser’s risk and cost. We shall be entitled to request payment of the costs of redelivery and the costs of inspection and managing the notification of defect incurred on our part. This shall not affect our claim to payment of the purchase price.
(5) Where, in exceptional cases, we accept a return of Products which are free from defects without prejudice we shall be entitled to claim charges for returning the Products to our warehouses as follows:
a) for ready-for-sale goods in complete packaging units: 10% of net value of goods, at least € 20.00.
b) for incomplete units of ready-for-sale goods: 20% of net value of goods, at least € 30.00.
c) for goods which are not ready for sale: 50% of the net value of goods, plus reasonable costs for restoring readiness for sale. Where the Products are already at our premises for inspection purposes, the Purchaser shall be entitled to request redelivery in accordance with Section 7 above.
(6) In the event that our Product is defective we shall initially have the choice between rendering subsequent performance by removing the defect (rectification) or by supplying an item free from defects (replacement).
(7) We shall be entitled to make the subsequent performance due by us conditional upon payment of the due purchase price by the Purchaser. However, the Purchaser shall be entitled to retain a part of the purchase price appropriate to the defect.
(8) Where subsequent performance has failed, or a period of grace for subsequent performance set by the Purchaser has expired unsuccessfully or is not required according to statute, the Purchaser may, in accordance with the statutory provisions, withdraw from the contract of sale or apply a reduction to the purchase price.
(9) The Purchaser shall only be entitled to claims for damages or compensation for wasted expenditure as set out in Section 10 of these General Terms and Conditions; such claims shall otherwise be excluded.
9. Product information, further processing of Products, and recalls
(1) We shall inform the Purchaser about our Products within the scope of our statutory information duty. In addition, the Purchaser shall, upon request, be provided with all information about the Products distributed by us which is available to us. In particular, we shall, upon request, extensively inform the Purchaser about the suitability of our Products and the purpose for which our Products may be used.
(2) Our Products are generally intended for professional use (commercial or industrial). If the Purchaser wishes to distribute the Products itself or through retail trade to the end-customer the Purchaser shall be required to enquire with us in advance whether the Products are of unqualified suitability for endcustomers. Where, in individual cases, our Products are explicitly designated for the leisure segment (end-customers) they are only suitable for this type of use.
(3) Any processing of our Products shall only be permitted within the scope of their suitability and under consideration of their purpose. This shall particularly apply to body protective and work protective products which comply with certain standards, certifications or other technical specifications, which shall continue to apply where Products are subject to further processing. In the event of doubt, the Purchaser shall be under obligation to contact us to ascertain whether the intended processing is permissible. In the absence of such permission, we shall not be liable if our Products cease to comply with a certain standard, certification or other technical specification or are no longer of the agreed quality as a consequence of further processing. For the purposes of clarification, we also draw attention to the fact that all the Purchaser’s claims due to defects shall be excluded if, despite presence of a defect which obliges the Purchaser to issue a notification pursuant to Section 8 (3) of these General Terms and Conditions, the Purchaser begins or continues with further processing. In particular, we shall not be liable in this context for any uselessly expended processing costs incurred by the Purchaser. The statutory provisions on contributory negligence shall be unaffected.
(4) In the event of recall due to product safety, the Purchaser shall support us to an appropriate and reasonable degree.
(1) Unless otherwise stipulated by these General Terms and Conditions, including the following provisions, we shall be liable in case of breach of contractual and extra-contractual obligations in accordance with the relevant statutory provisions.
(2) We shall be fully liable for damages – regardless of legal grounds – in cases of intent and gross negligence. In cases of slight negligence, we shall only be liable
a) for personal injury or death,
b) for damages incurred as a result of breach of an essential contractual duty (a duty the performance of which is essential to proper implementation of the agreement and on the performance of which the other party does and may regularly rely); however, our liability in such a case shall be limited to typically occurring, foreseeable damages.
(3) The limitation of liability in paragraph 10 of this Section shall not apply if we have maliciously concealed a defect or assumed a guarantee for the quality of the goods. The same shall apply to the Purchaser’s claims pursuant to the German Product Liability Law (Produkthaftungsgesetz).
11. Limitation period
(1) In deviation from Section 438 (1) No. 3 BGB, the general limitation period for claims due to material defects and defects of title – regardless of legal grounds – shall be one year from delivery; this shall not apply to claims
a) due to intent or gross negligence,
b) due to personal injury or death, and
c) due to breach of an essential contractual duty in terms of Section 10 (2) (b) of these General Terms and Conditions. Furthermore, the statutory provisions for third-party rights in rem to surrender (Section 438 (1) No. 1 BGB), malice (Section 438 (3) BGB), and claims as part of supplier’s recourse in the case of final delivery to an end-consumer (Section 479 BGB), and the limitation periods of the German Product Liability Law, shall be unaffected.
12. Advertising and copyrights
(1) In the event of resale of our Products by the Purchaser, the Purchaser undertakes to advertise the Products exclusively in an appropriate manner. We hereby draw the Purchaser’s attention to the fact that incorrect advertising with regard to the characteristics of a Product may result in warranty claims of third parties against us. The Purchaser hereby undertakes to indemnify us against the consequences of such advertising and to compensate us for any damage caused by a breach of this obligation.
(2) The above obligation shall not apply where images or texts supplied by us were used for the advertising with our prior express consent.
(3) We hold the copyright and usage rights to the advertising materials supplied by us, to our catalogue, and to parts thereof (in particular images). The Purchaser shall only be entitled to use these sources with our prior express consent, without deriving any independent rights to the same. We may revoke our consent at any time. In case our revocation of consent is not due to a breach of duty on the part of the Purchaser the revocation shall only apply with effect for the future.
13. Data storage
The Purchaser declares its express consent to us archiving and processing its data using information technology to the extent that this is required in the course of business proceedings and within the scope permitted by the German Federal Data Protection Act (Bundesdatenschutzgesetz).
14. Choice of law, place of jurisdiction and place of performance
(1) Where the Purchaser is a merchant (Kaufmann) as defined by the German Commercial Code (Handelsgesetzbuch), a legal person under public law or a special asset under public law, our registered business seat shall be the place of jurisdiction for all disputes arising from or in connection with this contractual relationship; however, we shall also be entitled to commence legal action against the Purchaser at the competent court of its residence.
(2) The law of the Federal Republic of Germany shall apply; applicability of the UN law on the sale of goods shall be excluded.
(3) Unless otherwise specified in the order confirmation, our registered business seat shall be the place of performance.
Re-use of the catalogue or of parts thereof (illustrations) for one’s own purposes shall only be permissible with written consent from DS Safetywear Arbeitsschutzprodukte GmbH
Fotonachweis: Fotolia.com: Sergej Seemann, Lianem, Roman Kmitta, Christian Jung, Franz Pfluegl, Frank Oppermann, Enisu, Stephan Morrosch, TheGame, Blickfang, Narcis Parfenti, Fritz