Sales-, Delivery- and Payment Terms of the Corporation for Research Transfer and Systems Technology GmbH (Gesellschaft für Forschungstransfer und Systemtechnik, forsys mbH)
§ 1 Scope of Application
(1) Authoritative contractual basis for all sales carried out by us [seller] are the following General Business Terms and Conditions as well as any individual agreements; they have precedence over any diverging conditions on the part of the buyer, which are excluded.
(2) These sales terms and conditions are valid for all future transactions with the purchaser, insofar as these involve legal transactions of a similar nature.
§ 2 Offer and Contract Conclusion
(1) If an order constitutes an offer according to § 145 BGB [German Civil Code], it can be accepted by us within two weeks. If a written offer has been received from the seller and no other arrangements have been made, then the quotation is binding for a period of three weeks after submission.
(2) The seller gives no quality- or durability guarantee for goods or for specifications, descriptions or drawings in price lists, catalogues or printed materials. If the purchaser is not a consumer, only express agreements on defined qualities or durability of the purchased items are to be considered as guarantees.
§ 3 Provided Documents
In all documents provided to the purchaser in connection with the placing of an order, such as calculations, drawings, sample goods, models etc., we reserve ownership rights and copyrights. These documents may not be made available to third parties, unless we have given the purchaser express permission for this in writing. If we have not accepted the purchaser’s offer within a period as specified in § 2, then these documents are to be promptly returned to us.
§ 4 Prices and Payment
(1) All prices are valid at the point of sale, subject to addition of value added tax, packaging and shipping/postage charges, and free by truck from our warehouse. If the sale is according to list prices, then the list prices valid at the time of contract closing apply. Assembly, installation and start, setting, and similar services can be provided upon request, and the costs for these services can be invoiced separately.
(2) The payment of the sale price is to take place exclusively to our account as specified overleaf. The deduction of any discount is only permissible in cases of express written agreement.
(3) To the extent that there are no agreements to the contrary, the sale price is to be paid within 10 days following delivery. Late payment interest is calculated at a rate of 8 % above the applicable base interest rate p.a. The right to enforcement of a higher claim for damages is reserved.
(4) If no fixed price agreement has been made, we reserve the right to make reasonable price adjustments due to altered wage-, material- and distribution costs for deliveries which take place three months or more after contract closing.
(5) Increases in VAT are to be charged to the purchaser immediately in commercial dealings and, in noncommercial dealings, if the goods are delivered more than four months after contract closing.
§ 5 Offsetting and Right of Retention
The purchaser shall only be entitled to the right of set-off if his counterclaims have been established by a court of law or are undisputed. The purchaser shall only be entitled to exercise a right of retention when his counterclaim is based on the contractual relationship.
§ 6 Delivery Period
(1) The beginning of the delivery period specified by us is conditional upon the punctual and proper fulfillment of the purchaser’s obligations. We reserve the right to claim non-performance of the contract.
(2) Should the customer delay acceptance or culpably infringe other contractual cooperation duties, we are entitled to claim compensation for any resulting damage, including any possible extra expenses. The right to additional claims is reserved. Should the above conditions exist, the risk of accidental loss or deterioration of the purchased items is transferred to the purchaser at such time as he has fallen in arrears or is in default of acceptance.
(3) Partial deliveries may be made if they are reasonable or appropriate for the purchaser.
(4) Any further legal rights and claims of the purchaser due to delayed delivery remain unaffected.
§ 7 Transferal of Risk in Shipment and Delivery
(1) If the goods are shipped to the purchaser at his request, then the risk of accidental ruin or damage to the goods is transferred to the purchaser at the time of shipment, at the latest, upon leaving the warehouse or sales branch. This is the case regardless of whether the goods are shipped from the place of performance, and regardless of who is responsible for shipping costs.
(2) With the transfer of goods to the shipping agent or transport person, including the purchaser’s own agents, the risk of ruin or damage is transferred to the purchaser. This applies as well for deliveries “free house” or “free building site”. Insurance of the goods against transportation damage is carried out only upon express, written wish of the purchaser and at his cost.
(3) If the purchaser does not immediately have the goods unloaded, then the seller is entitled to unload them or to have them unloaded at the purchaser’s risk, to the extent that this is possible according to the condition of the goods, and to charge the purchaser for this.
§ 8 Retention of Title
(1) We retain ownership of the delivered goods until full payment of all claims from the delivery contract is made. This applies as well for all future deliveries, even if we do not make explicit reference thereto. We are entitled to retrieve the goods if the buyer is in breach of contract.
(2) The purchaser is obligated to handle the goods with special care until such time as the ownership is transferred to him. In particular, he is obligated to insure them at his own cost against theft, fire and water damage at a level adequate for their replacement. If maintenance work must be carried out, the purchaser is obligated to have it carried out at his own cost. As long as ownership has not been transferred, the purchaser must notify us immediately in writing if the delivered items are seized or subject to interference by any third party. If the third party is not in a position to refund to us the judicial and extrajudicial costs of an action according to § 771 ZPO [German Code of Civil Procedure], the purchaser shall be liable for our resulting loss.
(3) A purchaser who is not a consumer is entitled to resell the goods subject to retention of title, within the normal course of business. The purchaser assigns to us the claims of the receiver arising from the resale of the reserved goods at this stage, in the amount agreed with us of the final invoice amount (including VAT). This act of transfer applies regardless of whether the sales items are sold before or after processing. The purchaser remains authorized to collect the receivables even after the assignment. Our right to collect the receivables on our own remains unaffected thereby. We will not exercise our collection claims, however, as long as the purchaser satisfies his payment obligations arising from the agreed proceeds, and in particular as long as no application is made for the initiation of insolvency proceedings, and payments have not been stopped. Our rights to retention of title do not expire even when goods which originally come from us are acquired by another buyer, as long as that buyer has not paid us for the goods.
(4) The processing or re-working of the goods by the customer, who is not a consumer, may only be carried out on the authority of, and at the order of, the seller. In this case the purchaser’s expectant right to the purchased article shall continue with respect to the transformed article. If the purchased goods are inseparably commingled with other goods not belonging to us, we will acquire co-ownership of the new goods in the proportion that the value of the purchased goods bears to the commingled goods at the time of processing. The same applies in the case of mixing. Insofar as the mixing occurs in such a manner that the item of the purchaser is to be regarded as the main item, it shall be considered as agreed that the purchaser assigns to us joint ownership, and thus retains the sole ownership or joint ownership generated in this way for us. To secure our claims against the purchaser, the purchaser also assigns to us such claims accruing to him through the combination of goods under retention of title with real property against a third party; we already accept this assignment with immediate effect.
(5) If the purchased item becomes an integral part of a building or parcel of land belonging to the purchaser, then the purchaser, who is not a consumer, is obligated, in case of non-compliance with payment deadlines and in the absence of rights of performance, to allow the seller to dismantle the items which can be disassembled without compromising the structure of the building, and to return to him the property rights for these objects. The dismantling and other costs are to be carried by the purchaser, who is not a consumer.
§ 9 Guarantee and Notification of Defects and Recourse/Manufacturer’s Recourse
(1) The warranty rights of the purchaser require that he has met the obligations of examination and reproof according to § 377 HGB [German Commercial Code].
(2) Defects claims fall under the statute of limitations one year after we have delivered the goods to the purchaser, who is not a consumer. In cases of sale of used goods, the guarantee period is completely excluded. The previous stipulations do not apply, to the extent that the law according to § 438 section 1 No. 2 Civil Code (Buildings and Items Used for a Building), § 479 section 1 Civil Code (Recourse), and § 634a section 1 Civil Code (Building Defects) mandatorily prescribes longer periods. Before any return of goods, our agreement must be obtained.
(3) Defects claims regarding goods delivered by us fall under the statute of limitations, if the purchaser is a consumer, in two years. In cases of the sale of used goods, the guarantee period is limited to one year.
(4) If, in spite of all care used, the delivered goods should be shown to have defects, which were already in existence at the time of the transfer of risk, we will repair the goods or supply replacement goods, at our discretion and subject to timely notification of defects. In all cases we must be granted the opportunity to carry out subsequent performance within a reasonable period. Recourse claims remain unaffected by the above regulation, without restriction.
(5) Defect claims are inapplicable in cases of only slight variation from the agreed quality, cases of only slight impairment of serviceability, where there is natural wear and tear such as damage resulting from wrong or careless handling which took place after the transfer of risk, from excessive loads, unsuitable equipment, imperfect workmanship, unsuitable building ground, or due to special external circumstances which have not been provided for in the contract. If the purchaser or a third party has carried out improper modifications or repair work, defects claims for these, or results incurred from this, have no validity.
(6) Claims by the purchaser derived from expenses required to satisfy subsequent performances, in particular transport-, travel-, work- and material costs, are excluded, to the extent that the costs increase because the goods delivered by us were taken subsequently to a place other than the purchaser’s premises.
(7) Claims of recourse from the purchaser, who is not a consumer, against us exist only to the extent that the purchaser has not reached any agreements with his own customer going beyond the statutory defects liability. Regarding the extent of the purchaser’s recourse claims against the seller, section 6 applies accordingly. The seller should be notified immediately of recourse claims against him. To the extent possible, the least expensive type of repair of any defects should be chosen by the purchaser.
§ 10 Liability
(1) The seller is liable, in cases of intent or gross negligence on the part of the seller or his representatives or agents, according to legal stipulations. Otherwise the seller is liable only according to product liability law, due to injury to life, body or health, or culpable breach of substantial contractual obligations. Damage claims for the infringement of substantial contractual obligations is limited, however, to contract-typical, foreseeable damage. In cases of gross negligence as well, the seller’s liability is limited to contract-typical, foreseeable damage, if none of the exceptional cases cited in sentence 2 of section 1 exists.
(2) Liability for damages caused by the delivered item to the purchaser’s legal property, e.g.,
damage to other items, is completely excluded. This does not apply in cases of intent or gross negligence, or liability for injury to life, body and health.
(3) The provisions in the above section 1 and 2 extend to damage claims in addition to and instead of the performance, for any legal cause whatever, especially due to defects, the breach of obligations under the contract, or illegal acts. They also apply to the claim for reimbursement for futile expenses.
(4) No change in the burden of proof to the disadvantage of the purchaser is implied by the above regulations.
§ 11 Miscellaneous
(1) This contract and the entire legal relations of the contract parties are subject to the laws of the Federal Republic of Germany, to the exclusion of the UN Sales Law (CISG).
(2) Place of fulfillment is our business location, and sole court of jurisdiction for all disputes arising from this contract is Osnabrück insofar as not otherwise agreed upon in the order of confirmation.
(3) All agreements that are made between the parties for the purpose of execution of this contract are stipulated in this contract in writing.
(4) Should individual clauses of this agreement be or become invalid or contain a loophole, this will not affect the remaining terms of this contract. The parties undertake to reach an agreement to replace the invalid clause with a valid provision which most closely reflects the business purpose of the invalid one, or closes the loophole.