General Terms and Conditions of Sale (GTC)

Status: August 2019

 

§ 1 Scope of application

(1) These Terms and Conditions of Sale shall apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). We shall only recognize 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) The following terms and conditions shall apply to all our offers, deliveries and services arising from sales contracts, contracts for work and services and other contracts, including those arising from future business transactions and continuing obligations.  

 

§ 2 Offer and conclusion of contract

An order is to be considered as an offer according to § 145 BGB. We may accept the offer within two weeks. The place of performance of all contractual services shall be our registered office in 21502 Geesthacht.

 

§ 3 Documents provided

We reserve the property rights and copyrights to all documents handed over to the purchaser in connection with the placing of the order, e.g. calculations, drawings, etc. These documents may not be made accessible to third parties. These documents may not be made accessible to third parties unless we give our express written consent to do so. If we do not accept the orderer's offer within the period of § 2, these documents shall be returned to us without delay.

 

§ 4 Prices and payment

(1) Unless otherwise agreed in writing and expressly confirmed by us in writing, our prices are in Euro ex works including packaging and plus value added tax at the applicable rate. (deleted)

(2) Payment of the purchase price shall be made exclusively to the account specified overleaf. The deduction of a cash discount is only permissible with a special written agreement.

(3) Unless otherwise agreed, the purchase price shall be paid within 8 days after delivery. Interest on arrears shall be charged at a rate of 9% above the respective prime rate p.a.. We reserve the right to assert a higher damage caused by default.

(4) Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries made 3 months or more after conclusion of the contract.

 

§ 5 Offsetting and rights of retention

The Purchaser shall only have the right of set-off if his counterclaims have been legally established or are undisputed. The Purchaser shall only be entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.

 

§ 6 Performance and Delivery Time

(1) Partial deliveries are permissible insofar as the customer is not unreasonably burdened thereby.

(2) We reserve the right to make changes to models, design or equipment, provided that this does not result in a change to the subject matter of the contract that is unreasonable for the customer. 

(3) We are entitled to have contractual services rendered by subcontractors. The rights of the customer arising from these terms and conditions of sale shall remain unaffected.

(4) The commencement of the delivery period stated by us shall be conditional upon the timely and proper fulfillment of the Customer's obligations. We reserve the right to plead non-performance of the contract. Dates and delivery times shall only be binding if they have been expressly confirmed by us in writing.

(5) If the customer is in default of acceptance, we shall be entitled, after expiry of a grace period to be set by us, to refuse performance of the contract and to claim damages. Instead, we may also dispose of the goods elsewhere and deliver to the customer within a new reasonable period. The compensation for damages shall amount to at least 30% of the agreed price, whereby the customer shall have the right to prove that no damage or a lesser amount of damage has been incurred. We reserve the right to prove higher damages.  

(6) In the event of a delay in delivery not caused by us intentionally or through gross negligence, we shall be liable for every second full week of delay within the framework of a lump-sum compensation for delay in the amount of 3 % of the delivery value, but not more than 15 % of the delivery value.

(7) Further legal claims and rights of the Purchaser due to a delay in delivery shall remain unaffected.

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§ 7 Withdrawal

(1) In the event that we ourselves do not receive correct or timely delivery, both parties shall be entitled to withdraw from the contract. 

(2) We shall be entitled to withdraw from the contract for the following reasons: 

if, contrary to the assumption existing prior to the conclusion of the contract, it turns out that the customer is not creditworthy. Credit unworthiness can be assumed without further ado in the event of a bill or check protest, cessation of payments by the customer or an unsuccessful attempt at compulsory enforcement at the customer. It is not necessary that the above conditions exist in the contractual relationship between us and the customer. 

If it turns out that the customer has provided inaccurate information with regard to his creditworthiness and this information is of considerable importance for the conclusion of the contract. If, after the conclusion of the contract, circumstances essential for the execution of the contract have developed without any possibility of influence and in particular without any fault on our part in such a way that the performance becomes impossible or unreasonably difficult for us. 

(3) In the event of force majeure as defined in Section 4.2, the parties shall be entitled to withdraw from the contract if performance is or becomes impossible in fact or in economic terms.  

 

§ 8 Transfer of risk in case of shipment

If the goods are shipped to the Purchaser at the Purchaser's request, the risk of accidental loss or accidental deterioration of the goods shall pass to the Purchaser upon dispatch to the Purchaser, at the latest upon leaving the factory/warehouse. This shall apply irrespective of whether the goods are dispatched from the place of performance or who bears the freight costs.

 

§ 9 Retention of title

(1) We retain title to the delivered goods until all claims arising from the delivery contract have been paid in full. This shall also apply to all future deliveries, even if we do not always expressly refer to this. We shall be entitled to take back the object of sale if the customer acts in breach of contract.

(2) As long as ownership has not yet been transferred to the Purchaser, the Purchaser shall be obliged to treat the object of sale with care. In particular, he shall be obliged to insure it adequately at his own expense against theft, fire and water damage at its replacement value. If maintenance and inspection work has to be carried out, the Purchaser shall carry this out in good time at its own expense. As long as ownership has not yet been transferred, the customer must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO (German Code of Civil Procedure), the purchaser shall be liable for the loss incurred by us.

(3) The purchaser shall be entitled to resell the reserved goods in the normal course of business. The Purchaser hereby assigns to us the claims of the customer arising from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply irrespective of whether the purchased goods have been resold without or after processing. The customer shall remain authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we shall not collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended.

(4) The processing or transformation of the object of sale by the customer shall always be carried out in our name and on our behalf. In this case, the purchaser's expectant right to the object of sale shall continue to apply to the transformed object. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the item of the customer is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis and shall keep the sole ownership or co-ownership thus created for us. In order to secure our claims against the purchaser, the purchaser shall also assign to us such claims as accrue to him against a third party as a result of the combination of the goods subject to retention of title with real property; we hereby accept this assignment.

(5) We undertake to release the securities to which we are entitled at the request of the customer insofar as their value exceeds the claims to be secured by more than 20%.

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§ 10 Warranty and notice of defects as well as recourse/manufacturer recourse

(1) Warranty rights of the purchaser presuppose that the purchaser has duly complied with its obligations to inspect the goods and to give notice of defects in accordance with § 377 of the German Commercial Code (HGB).

(2) Claims for defects shall become statute-barred 12 months after delivery of the goods supplied by us to our customer. Our consent must be obtained prior to any return of the goods.

(3) The quality of a product shall only be deemed to have been agreed if it has been expressly agreed in writing. The provision of free technical advice, information or other advice on the application and processing possibilities of the products shall not constitute an agreement on the quality of the product. 

(4) If, despite all due care and attention, the delivered goods show a defect which was already present at the time of the transfer of risk, we shall, at our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. We shall always be given the opportunity to remedy the defect within a reasonable period of time. Claims under a right of recourse shall remain unaffected by the above provision without restriction.

(5) If the subsequent performance fails, the Purchaser may - without prejudice to any claims for damages - withdraw from the contract or reduce the remuneration.

(6) Claims for defects shall not exist in the case of only insignificant deviation 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 arising after the transfer of risk as a result of incorrect or negligent handling or operation, excessive stress, unsuitable operating resources or due to special external influences which are not assumed under the contract. If the Purchaser or third parties carry out improper repair work or modifications, there shall also be no claims for defects for these and the resulting consequences.

(7) Claims of the Purchaser for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, shall be excluded to the extent that expenses are increased because the goods delivered by us were subsequently transported to a location other than the Purchaser's branch office, unless such transport is in accordance with their intended use.

(8) The Purchaser's right of recourse against us shall exist only to the extent that the Purchaser has not entered into any agreements with its customer exceeding the statutory mandatory claims for defects. Furthermore, paragraph 6 shall apply mutatis mutandis to the scope of the Purchaser's right of recourse against the Supplier.

 

§ 11 Liability

(1) Claims for damages shall be excluded irrespective of the nature of the breach of duty, including tort, except in cases of wilful misconduct or gross negligence.  

(2) In the event of a breach of material contractual obligations (cardinal obligations), we shall be liable for any negligence, but only up to the amount of the foreseeable, direct average damage typical of the contract. 

(3) The limitations of liability pursuant to § 11 items 1 and 2 shall not apply to claims under the Product Liability Act or to damages resulting from injury to life, body or health.  

(4) Insofar as our liability is excluded, this shall also apply to our employees, representatives and vicarious agents. 

(5) Any further warranty and liability than provided for in § 10 and § 11 shall be excluded - irrespective of the legal nature of the asserted claim. This shall apply in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation. 

 

§ 12 Approvals, permits and operating instructions

(1) The Customer is expressly advised that the shipment of Class I and Class II fireworks is only permitted by rail and freight forwarding. Pyrotechnic items are no longer permitted for shipment by mail.

(2) By placing an order, the customer assures that all necessary permits and approvals required for transport, storage and administration are available at the time of delivery of the goods.

(3) The customer is strictly obliged to use the products purchased from us exclusively in accordance with the specifications of the enclosed operating instructions. If, in exceptional cases, operating instructions are not enclosed, the customer must request them from us free of charge before using the product and await receipt.

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§ 13 Miscellaneous

(1) This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

(2) The place of performance and exclusive place of jurisdiction and for all disputes arising from this contract shall be our registered office, unless otherwise stated in the order confirmation.

(3) All agreements made between the parties for the purpose of executing this contract are set out in writing in this contract.

(4) Should individual provisions of this contract be or become invalid or contain a loophole, this shall not affect the remaining provisions. The parties undertake to replace the invalid provision with a legally permissible provision that comes as close as possible to the economic purpose of the invalid provision or fills this gap.